Potter (AP) v The Scottish Ministers [2010] ScotCS CSOH

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;

(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

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 telephone -

(a) where that is necessary during the investigation of a complaint made by any person who has received a telephone call from a prisoner;

(b) where there have been repeated breaches by prisoners of any of the conditions specified in paragraphs 5 or 6;

(d) where that is necessary to protect the security or good order of the prison or the safety of persons in it; or

(e) where that is necessary to enable maintenance or repair work (whether or not involving prisoner telephones) to be carried out.

(3) Any withdrawal is to have effect for such period as the Governor considers appropriate.

Conditions of use of a prisoner telephone

5. - (1) The use of a prisoner telephone is subject to the conditions set out in this paragraph and paragraph 6.

(2) A prisoner may only make a call to -

(a) a personal number, legal adviser or court identified in the list submitted by the prisoner in accordance with paragraph 6;

(b) the Scottish Prisons Complaints Commission;

(d) such other person or body as specified by the Governor.

(3) In respect of any prisoner telephone, a prisoner -

(a) can make outgoing calls only; and

(b) cannot make a call to -

(i) a telephone number beginning with "1";

(ii) the telephone number "999"; or

(iii) any other telephone number specified by the Governor.

(4) A prisoner is prohibited from using a prisoner telephone to make a telephone call -

(a) without the prior approval of the Governor, to a telephone number beginning with "08";

(b) to any person who has indicated in writing that they do not wish to receive telephone calls from that or any other prisoner;

(c) to any person, authority or organisation to whom a prisoner is prohibited from sending any letters or packages as specified in any direction under Rule 60 of the Rules;

(d) which, in the opinion of the Governor, involves the use of words or behaviour which is threatening, abusive or insulting or forms part of a criminal activity or attempted criminal activity; or

(e) without the prior approval of the Governor, to any telephone number which is not the same telephone number as the intended call recipient (for example, a telephone number which provides a routing service to a different telephone number).

(5) A prisoner must not tamper with or damage any prisoner telephone.

(6) Any breach of the conditions set out in this paragraph and paragraph 6 may -

(a) result in termination of the call; and

(b) give rise to disciplinary action under part 11 of the Rules.

List of calls to be made from a prisoner telephone

6. - (1) As soon as practicable after reception, a prisoner must submit a list to the Governor with details of all legal advisers, courts and personal numbers which the prisoner may call from a prisoner telephone.

(2) The list may not contain more than 20 telephone numbers unless the Governor considers that a greater number is justified having regard to the prisoner's circumstances.

(3) The Governor may on reasonable grounds refuse to allow the inclusion in the list of any telephone number requested by the prisoner.

(4) In respect of any telephone number included in the list, the Governor may require the prisoner to demonstrate that they have the consent of the relevant telephone number holder to call that number.

(5) The Governor may, as soon as practicable following a request from the prisoner, allow the list to be changed.

(6) Where, following a request for a change by a prisoner or a written request by the holder of a telephone number for the removal of a number, a telephone number is to be removed from the list, the Governor must as soon as practicable make arrangements for its removal.

(7) Subject to paragraph 7(9) and unless the prisoner agrees otherwise, the list of telephone numbers must be destroyed as soon as practicable after a prisoner is liberated.

Logging, monitoring and recording of calls

7. - (1) The Governor must make arrangements for the logging, monitoring and recording of calls from a prisoner telephone.

(2) The following information will be logged in respect of all calls made from a prisoner telephone -

(a) the telephone numbers dialled in each period of 24 hours;

(b) the duration and cost of each call made;

(d) the call recorded indicator.

(3) Any call made from a prisoner telephone, other than an exempted call, must be preceded by a recorded message which -

(a) advises the recipient that the call is coming from a Scottish prison; and

(b) advises parties to the call that the call will be logged and recorded and may be monitored.

(4) Any exempted call made from a prisoner telephone must be preceded by a recorded message which -

(a) advises the recipient that the call is coming from a Scottish prison; and

(b) advises parties to the call that the call will be logged but will not be recorded or monitored.

(5) All calls made from a prisoner telephone, other than exempted calls, will be recorded and may be monitored by an officer..."

[19] An exempted call, in terms of paragraph 1(3) means a call which is exempted from recording and monitoring, namely a call made to a legal adviser or a court as identified on the list submitted by the prisoner, the Samaritans, the Scottish Prisons Complaints Commission or such other person or body as may be specified by the Governor.

[20] Paragraph 8 of the Direction provides, subject to Rule 53 of the Rules, that a prisoner may purchase telephone credits to enable any calls to be made using a prisoner telephone and the cost of such shall be as determined by the Scottish Prison Service. The Governor may in exceptional circumstances permit the prisoner to purchase additional telephone credits.

[21] It can be seen that, whereas the insertion of a recorded message was within the Governor's discretion in terms of the 1999 Direction, the 2008 Direction makes it mandatory.

[22] As indicated, in terms of paragraph 3(2) of the Direction a Governor of a prison must display beside each prisoner telephone a notice in the terms set out in the Schedule to the Direction. That notice is in the following terms:

"NOTICE TO PRISONERS

USE OF PRISONER TELEPHONES

Conditions of use Prisoner Telephones

The use of prisoner telephones in this prison is subject to the conditions specified in the Direction made by the Scottish Ministers under Rule 62(2) and 165 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006.

All telephone calls from this prisoner telephone, other than exempted calls, will be preceded by a recorded message which -

(a) advises the recipient of the call that it is coming from a Scottish prison and that the recipient should stay on the line to accept the call or hang up to reject the call; and

(b) advises parties to the call that it will be logged and recorded and may be monitored.

Telephone calls made from prisoner telephones will be logged automatically (i.e. details of the telephone number dialled, the date, time and duration of the call, the total cost of the call, the prisoner's identification number and the call recorded indicator".

With the exception of exempted calls, calls will also be recorded and may be monitored (i.e. listened to whilst they are being made or via the recording afterwards). You should not therefore use the prisoner telephone to discuss matters which you would wish to remain confidential.

If you use a prisoner telephone in this prison you will deemed for the purposes of the Regulation of Investigatory Powers Act 2000 to have given your prior consent to the logging, monitoring and recording of any call made in accordance with the Direction.

Exempted calls

You should advise which telephone number(s) on the list which you have submitted under paragraph 6 of the Direction is/are that of your legal adviser(s), giving details of the adviser(s) including name, firm and location. You should also advise if any number is that of a court.

All exempted calls will be preceded by a message which advises the recipient:

(a) that the call is coming from a Scottish prison; and

(b) that the call will be logged but will not be recorded or monitored.

Breach of discipline

Failure to comply with this direction may result in termination of the call, withdrawal of access to the prisoner telephone or disciplinary action under part 11 of the Rules.

It is a breach of discipline to remove this notice or damage it in any way."

The factual background

[23] A PIN telephone system was installed in HMP Kilmarnock, a private prison, in 1999. Each prisoner was allocated a PIN (a personal identification number) to allow access to his or her telephone account. The prisoner could then nominate a list of pre-approved numbers (PAN). As it happens, I accept on the evidence led before me that that is a misnomer. There was, in fact, no pre-approval of numbers. Both the PAN and the PIN were personal and unique to the prisoner. The PIN system allowed for a pre-recorded message to precede outgoing calls. A rolling programme of introducing such telephone systems to public sector prisons in Scotland commenced in November 2003 and lasted approximately six months. On 10 February 2004 a PIN phone system was introduced into HM Prison Glenochil. In reliance on the 1999 Direction the Governor attached a pre-recorded message to outgoing prisoners' calls. Originally the message from Glenochil was as follows:

"This call originates from HM Prison Glenochil. As such it will be logged and may be recorded and/or monitored. If you do not wish to accept this call please hang up."

The message was changed on 8 February 2005 and since then has 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."

[24] In the case of telephone calls to legal advisers the recorded message is as follows:

"This call originates from a Scottish Prison. Your telephone number has been registered as that of a prisoner's nominated legal representative. The call will therefore be logged but not recorded."

[25] By the time of the petitioner's transfer to HMP Shotts in 2007 the telephone system had been installed there. The post-February 2005 recorded messages were attached to all prisoners' outgoing calls in reliance on the 1999 Direction and those messages are now attached pursuant to the 2008 Direction.

The remedy sought

[26] The petitioner seeks:

"(a) declarator that the said 1999 and 2008 Directions, et seperatim the Governors' introduction and maintenance of a telephone system pursuant to them, providing that any call made from a prisoner telephone be preceded by a recorded message which advises the recipient that the call is coming from a Scottish 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 by virtue of section 57(2) of the Scotland Act 1998;

(b) Such further order, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case."

History of the case

[27] By Opinion dated 20 March 2007 ([2007] CSOH 56) the Lord Ordinary, on the basis of the arguments presented to him at a First Hearing, sustained the petitioner's plea to the relevancy of the answers lodged by the Scottish Ministers and granted declarator as sought. Putting it shortly, he found that paragraph 6(8) of the 1999 Direction and the introduction by the Governor of Glenochil of a new telephone system in reliance thereon providing for the calls to be preceded by a recorded message advising recipients that the call was from a prison, were unlawful by virtue of Article 6(1) of the Human Rights Act 1998 and were ultra vires under reference to section 57(2) of the Scotland Act 1998. He found that they were not authorised by the Prisons (Scotland) Act 1989 and therefore failed the "in accordance with law" test in Article 8(2) of the Convention. He found that they would have been ultra vires in any event in accordance with common law principles.

[28] Both before the Lord Ordinary and the Division the respondents accepted that the inclusion of the pre-recorded message constituted interference by a public authority with the exercise of a prisoner's rights protected by Article 8.

[29] The principal issue before them was whether the interference was "in accordance with law".

[30] The First Division recalled the Lord Ordinary's interlocutor and remitted the case back to him to determine further procedure. It was observed that it could not confidently be affirmed at the stage the case had reached that the inclusion of the message was not in accordance with domestic law. The concerns expressed in the respondents' pleadings might, after proof, be seen to be ill-founded but might on the other hand amount to factors which were material and ought properly to be taken into account when construing the scope of the power to make rules in prison and like institutions and determining the validity of the exercise of that power. Their Lordships also indicated that while it was clear that telephone conversations were covered by the notions of "private life" and "correspondence" in Article 8 they were not to be taken as holding that all aspects of the use of telephones (including the use of pre-recorded messages) were necessarily so covered. That was an issue which required to be determined in due course.

[31] The case was eventually put out for a Second Hearing and called before me. In limine I was informed that the respondents' concession that the circumstances amounted to an interference with the petitioner's Article 8 rights was now withdrawn and, accordingly, that is a matter which I have to decide.

[32] In the course of the proceedings before me evidence was presented both orally and by way of affidavit. Counsel helpfully agreed a Joint Minute to the effect that the various affidavits referred to therein were to be taken as the whole of the evidence of those witnesses referred to therein who did not give evidence and as part of the evidence of those who had.

[33] Both senior counsel for the petitioner and the respondents presented written submissions which were supplemented orally and I am very grateful to both of them and no doubt to their respective juniors for taking the time and making the considerable effort involved.

The evidence

[34] The petitioner gave evidence and I also had the benefit of an affidavit from him. He was 46 years of age and was currently in Shotts with an earliest date of release in 2015. He started his sentence in Barlinnie then went to Glenochil in February 2002 before being transferred to Shotts in March 2007 where he had been ever since. He had one brother who lived in England, one in Fife and one in Glasgow. His mother also lived in Glasgow and he had a younger sister. He married in December 1990 and divorced in November 2005. There were two children of the marriage, one aged 14 and one almost 8. They were both boys and they lived with their mother. Before he was imprisoned he lived with his then wife and the older son, the younger one being born while he was serving his sentence. When he arrived in Glenochil there were two telephones on each landing and he was able to obtain a phone card which entitled him to make extra phone calls. He would be able to use his Prisoner Petty Cash money and a £10 phone card and he was not limited in the amount he spent. He could dial any number he wanted, other than "08" numbers and there was no message attached to the call then. There was, however, a notice telling prisoners not to speak about legal matters because calls could be monitored or recorded. About four weeks before the new system was installed in February 2004 he was told that the old phone cards would be phased out. When the system changed prisoners had to put in a nine digit PIN and there was a restriction on the numbers they could call. They had to put in a list of up to twenty numbers made up of personal ones and legal ones. According to his affidavit, for the first two weeks of the new system he was allowed to put anything up to £20 from his wages towards phone calls and £5 from his petty cash. He was now limited to £15 per week and could not buy extra phone cards, which curtailed the use he could make of the phone. He was given wage sheets every week and had to pick up his phone allowance from this by the following day. It could not be topped up during the week. When he made a call now he had to enter his prison number and his PIN number. At that time he would be told how much credit he had left in the phone account. Once he started talking he was not aware of how much he was spending. He used to be able to see this on the phone display but there was now no such indication. When he submitted twenty numbers they were programmed electronically and they could be changed from time to time. The prison knew which numbers were being phoned or dialled by him. He said that there was no other phone he could use other than these PIN phones. He indicated that he was told that the numbers would be subject to approval in that someone would telephone to make sure that he was allowed to call them. Prisoners could be prevented from telephoning a number but it never happened to him. According to his affidavit he was allowed no more than six professional telephone numbers and this meant he had to sacrifice other numbers. He had seven family phone numbers and seven friend phone numbers. He had friends all over the country so it was difficult for him to restrict this to seven and it meant he had to leave out the names of other friends. If he wished to change a number on the list he had to give 48 hours notice. This did not apply to emergency phone calls. In emergencies he could submit an oral request to a prison officer to use the telephone in the office for urgent calls but there was no set procedure for this and it was subject to the officer's discretion. He said that when the new telephone system was introduced he was able to make three short calls per month in this manner but this was stopped after two months and the officer would remain in the room while he was on the telephone. During the Christmas period of 2005 a friend passed away and he was allowed to call his mother from the office. He submitted a request to add her number to the list but was not allowed to call again until that had been done. This meant there were two days where he had to telephone his own mother and have his messages relayed. When his father died in December 2006 he was unable to contact his eldest brother Thomas Mooney to discuss funeral arrangements and assistance for his mother because his brother's number was not on the pre-approved list. He had to telephone his mother directly and this caused him distress. Many of his friends were ex-convicts. It was Glenochil's policy not to allow ex-convicts to visit him and his sole means of contact with his friends was the telephone. It should be noted that the affidavit was dated 5 February 2007. He had not called his friends as often as he would like to since he did not feel that the conversations would be private. He could not be kept up to date with his friends and their lives as contact was being restricted.

[35] The recorded message complained of was introduced at the same time as the new PIN system. He would pick up the telephone, enter his PIN and then dial the number. He would hear from his end when the telephone was answered and the message, which he could hear, would click in. He might hear the other person saying hello before the message clicked in. That could enable him to work out who was answering. His sister told him that she was under the impression that the message indicated that call charges were being reversed so he described it as confusing. Before the new system was introduced they were told that the message was going to be added, there always having been a message on the notice board that telephone calls would be recorded. He had seen the message referred to in the Schedule to the 2008 Direction. He said that it was on the notice board but not at the telephone, in breach of paragraph 3(2) of the 2006 Direction and paragraph 3(1)(d) of the 1994 Direction. As I understood him, the notice under the 1994 Direction went up in certain cases.

[36] After the message was attached he still used the phone but not as much as previously. As recorded in the affidavit, he had considerable difficulties with his former wife. He had arranged contact with his children through a third party but she had now retired and as at the date of the affidavit it had been nine months since he had been able to visit with his sons. They had been brought to Glenochil every three months or more often if the third party could manage this, to allow to him to keep in touch. 6/3 of process was a complaint form dated 15 May 2004. In terms of that he complained about the recorded message and the amount of phone numbers allowed. He complained because his elder son was starting to ask questions. He used to try to telephone his children every day but as at February 2007 said that for the past three months he had been unable to telephone them. The pre-recorded message would be heard by them every time he phoned. According to his affidavit his elder son began asking questions of his former wife about the message during the course of 2006, but this does not square with the evidence that the reason for his initial complaint was the questions being asked by his son. In any event his position was that following discussions with his ex-wife his son was picking up the fact that he was in jail. He now knew. He said in his affidavit that since his wife informed his son of his incarceration and what he was detained for he had been unable to speak to his sons. He could not telephone them as he did not wish to cause either son undue upset or distress. The response to the complaint was that the rules and regulations regarding the telephone were governed by the Scottish Prison Service National Policy. He indicated on the form that he was not happy with the answer but received the same response. The message had affected his communication with his family and friends. His elder son was born on 5 December 1995 and the younger one born on 3 May 2002. When he was seven or eight the elder would be brought to visit him by friends and family. He saw him in the visiting room where there were toys and a Playstation and a breakfast club. His boy was not aware at the start that he was a prisoner but shortly after he started to visit the message was adhibited and the boy spoke to his mother about it. A few months after this he explained to him what had happened at a visit. He had been speaking to him on the telephone and the boy kept asking who the wee woman was (the female voice). After a couple of months he sat him down and explained that he had done something wrong and was in prison. He would have discussed this with the boy in his own time but would probably not have chosen to give him those details at the age he then was. Something similar had arisen in relation to the younger boy. He was brought to the prison when he was a baby but the petitioner understood that he was now unaware of his father's existence. He still maintained contact with his elder son, partly on the telephone. He (the petitioner) said that the message was a horrible thing to be hearing all the time. He did not like it. He conceded that the message had no effect on his relationship with his wife, either before or after the divorce. He maintained contact with his siblings. He was not happy about the message when he telephoned a brother because it was a reminder of his situation. He could not phone his elder brothers during the day because they would be at work and they did not want their employers to know he was in prison. He would contact them at home and sometimes a sister-in-law or a niece of 7 or 8 would pick up the telephone. The child did not grasp what was happening and his brother would not mind him speaking to his daughter. He was asked what would happen if a guest picked up a phone in a house and said that that had happened at his mother's and the latter was not too happy about it. He had made arrangements to telephone at certain times. For example, if he phoned on a Sunday he could say that he would phone on the following Tuesday at a particular time but he could not always abide by those arrangements. He got school reports relating to his sons. He used to telephone the schools but on one occasion the phone was hung up because the school did not understand the message. He had to write to them to explain the situation. He did not phone them regularly, although had done so occasionally, and had now started writing to them. His affidavit indicated that he did not speak to his elder son for about three weeks when the system was first introduced as he did not want him to hear the message. The boy had been referred to the Childrens Panel so they had to be informed. When he called the school after the first call he used the office phone but he now just communicated by letter since the older child was at secondary school. He did not want them to know that his father was in jail. His wife had entered another relationship before the parties were divorced. If he telephoned the house and the boyfriend answered, the latter would just hang up and prevent him from saying what he wanted to say. He knew the petitioner was calling because of the message. There had been certain allegations made by the boyfriend's ex-partner in connection with his behaviour towards their children and that concerned him. He had tried to check the position with the Reporter, the police, the Social Work Department and the school to see if his own children were being adversely affected but if he was to communicate with them by telephone they would know he was in custody. He said that the police visited him in Glenochil to discuss matters, the Social Work Department having referred them to him as a concerned parent. His affidavit indicated that he had been unable to telephone them (presumably the Social Work Department) to confirm the outcome of the investigations although I am not entirely clear why this should be the case.

[37] His younger brother John lived in Fife and he did not want the petitioner telephoning his work. He had a friend James Docherty who use to bring his son to prison. Mr Docherty lived with his mother and the petitioner could only telephone him when he was out of the house because she did not want them to be in touch. It affected calls to other friends because every time he used the telephone the first thing he heard was the message. A number of other prisoners did not want their children to know that they were in prison. The same went for parents and grandparents, so the message affected their ability to contact them.

[38] He said that prisoners attracted a certain level of supervision. They were highly supervised if they were just sentenced and the prison did not known much about them. The type of crime also affected the level of supervision. However, the high supervision allocated automatically to a prisoner when he came in would gradually be assessed and could change according to his behaviour. He was at a medium level at this stage. He had been high at first and then low and then back to medium. He had never been barred from the phone as a result of any complaints.

[39] He confirmed that calls were logged and recorded. He was aware of that and was also aware of the fact that they were sometimes monitored. If the system was misused by abuse or threats it was easy for the authorities to find out. That sometimes happened and prisoners would be barred from using the telephone or at least from calling certain numbers. He complained to the Scottish Prison Complaints Commissioner but did not know what happened to his complaint. He was referred to 7/3 of process, page 1 of which is a letter from the Complaints Commissioner to Tony Cameron, the then Chief Executive of the Scottish Prison Service, dated some time around January 2005. This letter intimated two formal recommendations of the SPCC. The first paragraph of page 2 narrates complaints received by the SPCC from a number of prisoners. It is in the following terms:

"Our office has received many complaints from prisoners regarding the above-noted pre-recorded message. Mr at Perth states there are a number of his family members who do not know he is in prison and he cannot call them at all with the pre-recorded message stating the call originates from a prison. Mr at Shotts complains that the message can cause 'irrevocable damage' to the reputation of family members and friends of prisoners should work colleagues of the persons they are trying to contact answer the phone and hear the message. Similarly, Mr at Peterhead originally complained that the message identifying the prison as Peterhead led to a dramatic reduction in the number of calls he could make but he has since confirmed that identifying the origin of the call as a prison still makes it impossible for him to contact family at their work place for fear their work colleagues will answer the call. Mr at Shotts reports that the message causes enormous stress for his wife and children to have to be constantly reminded that he is calling from prison and this had led to a reduction in the number of calls he makes to family members. Mr Stuart Potter, 12387 at Glenochil and at Perth complained generally that the message creates an interference with their being able to contact friends and family. We have also received many phone calls from prisoners complaining that they fear phoning their family home as their children may answer the phone and their children do not know that their father is in prison. The fact that many prisoners have, in frustration, not filed CP's prohibits our involvement in many of the complaints but does not in anyway (sic) diminish our awareness of the widespread disturbance that the pre-recorded message has caused. The complaints often refer to the anger, frustration and disgust that the pre-recorded message has inspired in the prison population and that the message is 'disproportionate' to the aim being pursued by SPS as per Article 8 of the ECHR."

The letter went on to indicate that the SPCC's view was that the pre-recorded message was an interference with a prisoner's communications with his family and was thus in violation of Article 8(1) of the Convention. The Commissioner believed there was a strong argument that Rule 54 did not authorise the pre-recorded message and it was questionable whether it was in accordance with the law. There were no recommendations made on that part of the pre-recorded message which advised recipients that the call was subject to monitoring and recording. Given that the monitoring and recording of calls was authorised by law the Commissioner believed that that part complied with the legal duty to advise persons when their reasonable expectation of privacy was being interfered with and was thus "necessary" and also provided ample opportunity for any call recipient to refuse the call. If a call was accepted and turned out to be from an anonymous abusive caller the recipient could hang up and never accept any future calls which were preceded by that part of the pre-recorded message. There were concerns expressed about the "necessity" of notifying recipients of a call's origin. It was thought to be unlikely that a prisoner would risk forfeiting his phone use rights by making an anonymous abusive call when SPS staff could easily listen in at any time. A further safeguard lay in the fact that recipients of phone calls could contact SPS and complain if they had received an abusive call.

[40] It was recommended that the pre-recorded message be amended and that the part of it identifying the call as originating from a prison be deleted. Plainly that recommendation had not been accepted although it was accepted that the message should not identify the particular prison from which a call originated.

[41] In cross-examination the petitioner agreed that his complaint about the telephone message was one of a number of complaints he had made about the telephone system. Internal complaints could go backwards and forwards in the prison and then would go to the Commissioner. The first complaint dated 18 March 2004 related to a reduction in the financial limit available for telephone calls. This affected the petitioner because he was appealing at the time. 6/4 of process was a form containing a referral, dated 5 April 2004 of a complaint to the Governor and the Governor's response dated 6 April. The call limit at the moment remained at twenty. How it broke down between personal calls and legal calls was a matter of preference for the individual prisoner. 6/3 of process was a complaint form dated 15 May 2004 complaining about the recorded message and the number of phone numbers allowed. He took this as far as he could internally, complaining for example that in Barlinnie twice as many numbers were available as in Glenochil. He said that he had three complaints going at the one time. 6/11 of process was a letter to him from the Commissioner dated 29 July 2004. The SPCC's conclusion was that creating a limit of twenty on the number of allowable phone numbers did not create an interference with prisoner communications under Article 8. There was a complaint that providing SPS with information on recipients of prisoner phone calls was intrusive and raised privacy issues. Once again the Commissioner did not think that that created an interference with what the Commission described as a prisoner's limited right to privacy although it was indicated that the Commission intended to continue to consider and research that issue. There were concerns that there appeared to be no national policy developed to insure that all information on a recipient of a prisoner's call was permanently deleted when a prisoner asked that the number be replaced with another number. The matter remained under consideration. Points 3, 4 and 5 of 6/11, the SPCC's document containing the results of their deliberation run as follows:

"3. Complaint: That the pre-recorded message advising that the phone call is subject to monitoring/recording is intrusive and disproportionate to the purpose sought to be achieved and thus in breach of Article 8.

Conclusion: The interception of telephone communications in the UK can be authorised under the Regulation of Investigatory Powers Act 2000 (that effectively repealed all of the relevant sections of the Interception of Communications Act). The new Act provides that telecommunication interceptions are authorised if in accordance with powers conferred by the Prisons (Scotland) Act or Rules passed under the Act. The Prisons (Scotland) Act Rules authorise such interceptions. Neither the Prisons (Scotland) Act Rules nor the Regulation of Investigatory Powers Act nor the Data Protection Act specifically require that the callers and recipients of prisoner phone calls must be notified that the calls are subject to monitoring/recording. However the recipients of calls have a "reasonable expectation of privacy" under the common law and a right not to have their communications covertly recorded. The monitoring is not meant to be covert surveillance. The SPCC agrees that it is legally responsible to advise the recipients of the monitoring/recording of the call. The purpose of the pre-recorded notice is to ensure the protection of the rights and freedoms of the recipients of the calls. As a consequence, the SPCC find this to be an interference that is authorised by law and proportionate to the purpose being sought and we make no recommendation on this issue.

4. Complaint: That the pre-recorded message advising that the call is coming from a prison is intrusive and disproportionate and breaches Article 8.

Conclusion: The SPCC believes this is arguably the most controversial and contentious part of the new phone system. We continue to consider all relevant statutes, Rules, Directives and research all ECHR and Scottish case law on this issue. We have not reached a final decision on whether to proceed with a formal recommendation to the CE of the SPS but we hope to finalise our decision in this regard within the next few weeks.

5. Complaint: That the pre-recorded message identifying which prison the call is coming from is intrusive and disproportionate and breaches Article 8.

Conclusion: The SPCC concluded that it was not necessary to identify the prison where the call was being generated. We believe that there are a number of safeguards in place to ensure that members of the public would not be subject to abusive or threatening phone calls without this information being disclosed in the message. We filed a formal recommendation that this information be deleted from the system and the SPS agreed to do so. It is our understanding that the deletion will be made by the end of the summer."

In other words, the Commissioner was happy that the recipients of calls should be told that they would be recorded and might be monitored. They were still considering the question whether reference to the call coming from a prison should be included and they concluded that the identification of the particular prison in question was not justified. In fact that had stopped. There was also a complaint that the tone of the message was rude or harsh but the Commission did not agree. Neither did they agree that there was an unnecessary limit on the amount of phone credit which could be purchased. There had also been a complaint that prisoners were required to pay for the time it took for the pre-recorded message to play. There was a ten pence connection fee which kicked in as soon as the recipient answered their call or an answering machine came on but that was no different from calls made from a phone box in the community. As I understood matters SPS paid for the message itself and no recommendation was made by the SPCC on this issue.

[42] Only one complaint, therefore, was accepted as well founded by the Commissioner. The petitioner, however, did not accept that there should be any message preceding a call. He thought that if a list of twenty numbers was handed in that should be sufficient. Having said that, he would not object to a message saying that the call would be logged, recorded and might be monitored. He agreed that his son might question why he was being told that the call would be logged, recorded and might be monitored. Any person who was told that might naturally question who it was who was doing the recording etcetera. The message provided that information. The petitioner's position was that it was his decision whether or not to tell people that he was calling from a prison. He was not aware that at least one person had been convicted in Scotland as a result of information they had conveyed to a prisoner. It was put to him that it was a good thing to tell the recipient that their conversations were not private and might be overheard. His position was that he would tell the recipient to be careful. He accepted that it was a question of time when his son was told that he was in prison. He did not accept that schools would not accept random calls about children and that they would ask people to write in about them. He reiterated that school reports were sent to him in prison and said that his ex-wife would accept information about the children being sent to him. He agreed that over Christmas 2007 he did not know where they were and had to make enquiries through relatives. He was aware that if telephone calls were abused the authorities could find out. He knew that calls were randomly monitored but not all of them were, so he agreed that whether authorities found out about abuse was a matter of chance or reliant on people complaining. He had been told that one of the reasons for the message was to protect people who might be abused. It was put to him that one of the reasons for putting the message across the board was to eliminate bullying so that prisoners would not be bullied to make calls to numbers which the bully could not make. He said that that could not be done because the twenty numbers were checked. It was put to him that the numbers were not checked. With 7,000 prisoners and twenty numbers each that made 140,000 numbers. He agreed that it was difficult to check all of these numbers but said that when a prisoner came in at first he had maybe four or five numbers and added more in later. He agreed that numbers could be changed but said that the notice period for doing so was not short. He also agreed that one benefit of the message was that the recipient could put the phone down so there was no need to check numbers and the system was easier to administer. He also agreed that if the SPS phoned recipients up and asked about their relationship with the prisoner and whether they wanted calls that might attract a complaint that their privacy had been invaded. Some prisoners did not want their relatives to know that they were in jail and that would not work if the authorities phoned them to check if they wanted to receive a call. The petitioner said that under those circumstances a prisoner would not give, for example, his grandmother's number to the authorities. The old system, he said, always worked for him and everyone round about him. He would not be happy with a system, such as in Spain, where the prisoner had to ask permission to make a call. Neither would he be happy if the prison officer were present during the call. It was put to him that the situation in Ireland was that prisoners submitted numbers in advance and the prison phoned the recipients to see if they were agreeable to receiving calls. He accepted that if the prison had tried to phone Mr Docherty and got his mother instead she might have barred future calls. He would not have been happy with the Irish system. Whereas in Scotland the system allowed twenty numbers, in Ireland only four were allowed and his attitude to that was that he would need to keep changing the numbers.

[43] He was referred to paragraph 21 of 6/46 of process, a supplementary report by Professor Andrew Coyle, of whom more later. In this paragraph he deals with an affidavit by Rona Sweeney, whose evidence I will come to. Paragraph 21 reads as follows:

"Paragraph 27: It would be 'a significant burden' on the SPS in terms of resources to check the 20 numbers which every prisoner can submit. There are other options for dealing with this matter. One would be to reduce the number allowed. Presumably that is one of the reasons why the Irish Prison Service limits each person to four numbers. The SPS does not advance any reason why it has settled on the apparently high number of 20 numbers for every prisoner, nor does it give any indication as to how many prisoners register anything approaching that number. Another option would be to concentrate on those prisoners who, for whatever reason, might be likely to misuse access to a telephone. This is what is done in England and Wales. Mr Duffy appears to acknowledge that possibility in the comment in his first affidavit noted above that 'most ordinary prisoners do not require to be checked'."

[44] The petitioner reiterated that if he had access to only four numbers he would need to keep changing them. He did not know much about the English system.

[45] He was then referred to 6/35 of process, a document from HM Prison Service regarding prisoner's use of telephones, and in particular to page 40 thereof which contains a notice to prisoners in use in England in the following terms:

"NOTICE TO PRISONERS

CONVERSATIONS MADE ON THIS PINPHONE WILL BE RECORDED AND MAY BE LISTENED TO BY PRISON STAFF. PINPHONES ARE PROVIDED ONLY FOR USE BY PRISONERS WHO CONSENT TO THIS. IT IS YOUR RESPONSIBILITY TO ADVISE THE PERSONS YOU SPEAK TO THAT THE CONVERSATION WILL BE RECORDED AND MAY BE MONITORED BY PRISON STAFF.

CALLS TO YOUR LEGAL ADISER, THE SAMARITANS, CONSULAR OFFICIALS, THE PRISONS OMBUDSMAN AND THE CRIMINAL CASES REVIEW COMMISSION, OR CALLS TO CERTAIN OTHER REPUTABLE ORGANISATIONS WHO PROVIDE CONFIDENTIAL HELP AND GUIDANCE, ARE REGARDED AS PRIVILEGED AND WILL NOT BE MONITORED."

It was apparent, therefore, that in England the same problem was addressed but the person receiving the call had to be told by the prisoner that their privacy would be invaded. The petitioner accepted that that left room for a prisoner not to bother. The effect of that would be that the recipient would then be subject to covert surveillance. If the prisoner had to say the words then the embarrassment, such as it was, was reinforced because the prisoner had to say them rather than their being contained in a recorded message.

[46] He accepted that this way of doing things achieved the same result as the Scottish way but by different means. He accepted that if a prisoner could get around it by not conveying the information then the English message might be thought to attach more consideration to the prisoner's rights than those of the person being phoned.

[47] He agreed that the decision of the SPCC in around January 2005 recommended dropping of the mention of a prison from the recorded message. The petition commenced in September 2006. That meant that he had been living with the message for more than twenty eight months but his position was that difficulties with legal aid had caused the delay. In the meantime he had arrived at practical ways of dealing with Mr Docherty and his brother by telling them when he expected to call etcetera. He was in receipt of visits and could use the mail system.

[48] In re-examination he said that he had not abused the telephone himself and was a medium supervision prisoner. He understood that the message was attached to every call from every Scottish prison. There was no differentiation between prisoners. It was put to him that in England one of the systems in use was that any number could be called except for certain barred ones but that did not apply to him. He had to put a limited number of numbers in and the message was adhibited to every call. As a caller he knew that there was a risk of recording and monitoring. He was asked whether that caused him or others to pause before abusing people and he said that he had not abused anybody but agreed that it might be a deterrent. In England the responsibility was on the prisoner but the prisoners in Scotland had no choice. Not all of the complaints he had made had been looked at in evidence. In any event the Commissioner had made a recommendation in 2005. It was up to him to choose how to allocate his numbers between personal and legal numbers. He always had around seventeen numbers but he did not know if others had as many as that or less.

[49] The petitioner's younger brother John Potter provided an affidavit dated 5 September 2008. He deponed that he knew how important it was for the petitioner to have contact with his family. Sometimes the witness felt that no one else bothered with him. His brother phoned him as often as he could or rather as often as he could afford it. He and his mother sometimes sent him money. The petitioner could only phone him at home. He was unable to call him at work because of the pre-recorded message. The witness had asked him not to phone him at work as this would be too embarrassing and he would not wish his employer to know his family circumstances. That could possibly jeopardise his employment and in any event he would not like to risk it. He sometimes joked with him about the pre-recorded message and said that he was going to hang up. He knew that it was embarrassing for his brother and he found it a bit disturbing himself to hear it. He lived on his own and was glad that he was the only one who would pick up such a phone call. He would find it very difficult if a friend of his picked up the phone and heard the message. There had been a fallout in the family which arose mostly when the petitioner's ex-wife moved away with his children and did not tell him where she was going. He knew that the petitioner was very fond of his children and was keen to keep in touch with them. It was important for them to know who their father was and keep in contact. The petition phoned his mother in Christmas 2007, desperate to find out where his wife had gone so that he could keep in touch with the children.

[50] James Docherty, whom I have already mentioned, provided an affidavit dated 12 September 2008. He got to know the petitioner when he was serving a sentence himself in Glenochil between 2002 and 2004. He kept in touch with him when he was released in August 2004. He would visit him at Glenochil and sometimes at Shotts.

[51] When the witness was first released from custody he went to see the petitioner about once a month and he would sometimes also take the petitioner's older boy. The visits deteriorated as the petitioner's ex-wife got together with a new man.

[52] He took the boy to Glenochil a couple of times in 2004 and 2005 when he was between the ages of 6 and 7. The petitioner's ex-wife would not allow the younger child to go. The petitioner was always tremendously pleased to see his son and the son was happy to see his father. During the visits the witness generally stayed in the background to enable them to interact.

[53] When the petitioner and the witness were both inmates he frequently talked about his children and was very keen to know about their well-being and progress. He used to get their school reports. Once the family visits stopped he continued to keep in touch with the children by writing and by telephoning them. He thought that he now avoided calling the children due to the pre-recorded message, which was pretty embarrassing. The witness was able to say that there were a lot of prisoners who did not tell their families that they were serving prison sentences for various reasons. Some of them wished their children to be protected from the information or they did not want their families to be embarrassed if someone else picked up the telephone. If someone did not like to be telephoned by someone they did not need to speak to them.

[54] The message was introduced to Glenochil around the week he was due to get out and when it came in he did not phone anyone. In any event he had family visits and that was a good way to keep in touch. For people who did not get visits and who were not great writers telephone contact was really important. The petitioner phoned him at his house but he had to make special arrangements when that could be done. He lived with his mother who looked after his nephew and niece aged 7 and 2 years. His mother was mortified at the thought that one of the children could pick up the phone and she found the message disturbing. The children would be really frightened and it would be horrible for the petitioner. That was one of the reasons she had been quite keen for him not to keep in touch with the petitioner by telephone. The witness's sister also popped in so he had to take that into account.

[55] The witness thought that the message was entirely unnecessary. One would think that people were mature enough simply to hang up if they did not wish to speak to the person calling them.

[56] When his son stopped coming to see him the petitioner was heartbroken. He was serving a long enough sentence and it was important for him to maintain contact with his children. He understood that the petitioner's wife had now disappeared from the scene and did not wish any contact. The message only made things worse.

[57] The petitioner also relied on an affidavit from Gary Westcott dated 12 September 2008. He was employed as a solutions design consultant. He had been asked to address the question whether it was possible to disable the message for any given number or numbers. As I understood his affidavit, he answered that in the affirmative, provided that the system manager had the correct system access capability. Various levels of adaptations and procedure would be required. It could be achieved at local level if the local system manager had sufficient system access. It was more likely that the provider would need to manipulate the system as components would invariably be "locked out" to anyone else. Where a deeper level of change was required the software would need to be extensively altered and only the system owner could do this. At worse case the system could not be altered and either would have to be changed or the concept abandoned. He was not able to comment on the procedures adopted by the SPS but as I understood the affidavit he noted that the management aspect for the prison authority would be far greater than before due to the PAN (pre-approved numbers) options complicating set-up/adaptation for prisoners.

[58] It might have been helpful actually to hear from this witness who could explain the somewhat complicated jargon in his affidavit. I think that he was saying that the system could be changed but I cannot really read much more into his affidavit than that.

[59] There was also an affidavit, dated 18 July 2008, from Dr Nancy Loucks. She was the Chief Executive of Families Outside. That was a national voluntary organisation in Scotland which worked to support families affected by imprisonment. They did this through the operation of a freephone helpline and by acting as a voice for families on local and national bodies such as the National Advisory Body to the Cabinet Secretary for Justice, the Community Justice Authorities and the Scottish Consortium on Crime and Criminal Justice. She was not in a position to comment on the legal implications of the petition but was able to comment on the basis of the organisation's experience in working with families with a relative in prison.

[60] The Scottish Prisoners' Families Helpline had received few calls from families complaining about the recorded message. That did not mean that the message did not cause distress. Families were commonly reticent to complain about prison policies in general, both because they accepted such restrictions as part and parcel of the rules imposed upon them and because they were fearful of repercussions against the prisoner.

[61] The organisation had long been concerned about the potential impact the message had on families as well as on the prisoner's efforts for resettlement. The SPS had explained, in discussions, that the protection of potential victims was paramount. While that was understandable, it failed to take into account the fact that the majority of prisoners were unlikely to waste their usually limited finances to harass people through telephone calls which might be monitored or recorded.

[62] It was of concern to the organisation that prisoners and their families frequently chose not to tell children when a family member was in prison. They tried to encourage families to be as open and honest as possible but that was not easy and might not be necessary when children were very young or when a prisoner was serving a short sentence. The risk was that children would learn of a family member's imprisonment through a recorded message when they answered the telephone. That could be incredibly traumatic especially where other family members had made great efforts to conceal the fact.

[63] While children were the most likely to be at risk of such trauma the same case could be made where, for example, prisoners wished to maintain contact with parents or grandparents but did not wish them to know of their incarceration. Where family members did not see each other regularly they might not need to know. That was also the case for employers or potential employers where the period of remand or type of conviction was irrelevant to the job in question. Schools and social work teams posed further examples in which a recorded message was not only unnecessary but potentially detrimental.

[64] The biggest concern was that prisoners deterred by the recorded message would fail to maintain contact with their families. The maintenance of family ties was central to a prisoner's resettlement, with research suggesting reduction of re-offending up to six times that of prisoners who did not maintain these connections. Distance to prisons, extensive time and cost of travel, prison rules and the restricted and institutional environment already acted as a deterrent to families who wished to maintain contact. Research in England and Wales showed that about half of prisoners lost contact with their families while they were in prison, so it was essential for prisons to work to encourage rather than to discourage these ties.

[65] In her opinion, other existing safeguards would appear to be adequate to protect potential victims. In the first place, prisoners could only dial specified telephone numbers. Where pre-existing victimisation was known, certain numbers could be blocked or numbers could be removed in the event of a complaint. All calls might be monitored or recorded so prisons had the evidence to know whether prisoners were abusing their use of the telephone on certain occasions.

[66] Lastly, she deponed that a recorded message stating that calls may be monitored or recorded should not pose difficulties for families. A recorded message saying that the call originated from a prison undoubtedly did.

[67] The petitioner's last witness was Professor Andrew Coyle, Professor of Prison Studies at The School of Law, King's College, University of London. His full CV is set out in 6/44 of process. Suffice it to say that between 1973 and 1991 he was a prison governor in the Scottish Prison Service, during which times he governed successively Greenock, Peterhead and Shotts prisons. From 1991 until 1997 he was Governor of Brixton Prison in London. Between 1997 and 2005 he was Director of the International Centre for Prison Studies at the School of Law, King's College, University of London. He acts frequently as an adviser on prison issues to bodies such as the United Nations and the Council of Europe, including its committee for the prevention of torture. He is a member of the Foreign Secretary's Expert Panel Against Torture. He has visited and advised on prison systems in over 60 countries in all regions of the world. He has a PhD in Criminology from the Faculty of Law in the University of Edinburgh and is a Fellow of King's College, London. He has published widely on prison and criminal justice issues and has produced numerous expert reports in litigation cases relating to prison issues.

[68] He had provided two reports in the current case, number 6/33 and 6/46 of process, dated June 2008 and January 2010 respectively. His first report dealt inter alia with the situations in England and Wales, the Republic of Ireland, Spain and Sweden, as well as the Scottish position. The use of telephones by prisoners in England and Wales was covered by the Prison Service Order (PSO) 4400(4): Prisoner Communications: Chapter 4 - Prisoners' Use of Telephones, issued on 29 July 2005, a part of which I have already quoted. PIN phones were installed in all public sector prisons in England and Wales under a centrally managed contract with British Telecom. All prisoners were provided with individual electronic telephone accounts which they accessed by using a PIN. In order to make a call, prisoners input their PIN on the keypad as well as dialling the numbers they wish to call. According to the PSO, this system "gives to Governors improved control over prisoners' access to and use of telephones and increases the potential for protection of the public from harassment by prisoners." (paragraph 1.8). In brief, according to paragraph 1.4, the system "allows an improvement in the control of prisoners' use of telephones. The system strikes a balance between the security and good order of establishments; the need for prisoners to keep in contact with their families and friends; and the protection of the public from unwanted telephone contact from prisoners."

[69] Before being issued with a PIN, all prisoners are required to confirm in writing their agreement to the terms and conditions of use. Annexe A to Professor Coyle's first report sets out the terms and conditions. Inter alia the PIN must only be used by the prisoner, who must not let other prisoners use it. Calling or attempting to call unauthorised numbers or handing the phone to another prisoner to continue a conversation initiated by the original prisoner may result in disciplinary action. Conversations will be recorded and may be monitored by prison staff. PIN phones can only be used by prisoners who consent to this. There is an exception for certain numbers such as legal advisers et cetera.

[70] I need not go into the other terms and conditions.

[71] Professor Coyle thought that the system had been operation in England from at least 2000. He said that much of the concern of management and regulation of prisons was to strike a right balance and be proportionate. One had to consider the security of prison, the rights of prisoners and their families and the protection of the public. The Prison Service thought that the Prison Service Order struck the right balance. The right to contact family and friends was one of the most important elements internationally in rehabilitation of prisoners. The Prison Service had given high priority to that and it was also important to protect the public from unwanted contact. If a potential recipient did not want a call, effect was given to that. He referred again to paragraph 1.8 of the PSO and read 1.9 which is to the following effect:

"The other major feature of the Pinphone system is enhanced monitoring and recording facilities and the degree of control of prisoners' use of telephones which will be able to be closely tailored to the risk they present."

He said that prisoners were not homogeneous. Some posed a greater risk than others and the prison service in England and Wales made individual risk assessments. How they did that was detailed in the document and involved both call enabling and call barring. Paragraph 2.13 of the PSO runs as follows:

"The Pinphone system offers two types of telephone services - Call enabling and Call barring. Call enabling means that a prisoner can only call those numbers they have submitted and have been approved by the Prison. Call barring means that the prisoner can call any number except those specifically barred by the Prison."

He said that broadly speaking the system in Scotland was one of call enabling, based on the list of up to twenty numbers which could be called and which had to be approved.

[72] Call enabling was not applied across the board in England and Wales. It operated for the categories of prisoners set out in paragraph 2.16 of the PSO. These include category A prisoners and potential category A prisoners. Category A prisoners are escapees who might present a risk to the State and potential category A prisoners are prisoners who have not yet been convicted but who would be category A if they were. Until the early 90's there was a similar arrangement in Scotland and there were around ten category A prisoners or perhaps less. The matter was revisited by the SPS and a simpler system was brought in. There are three categories in this country, namely prisoners who are on high, medium and low supervision. Prisoners on the escape list, that is persons who have either attempted or succeeded in escaping, are subject to call enabling in England and Wales. Prisoners identified as being subject to harassment procedures under the Protection From Harassment Act 1997 are also on that call enabling list as are prisoners identified as being subject to certain measures regarding the safeguarding of children and prisoners convicted of offences against children under the age of 18. Others are prisoners who have been identified by the police and/or Probation Service as presenting a risk against witnesses and/or victims, anyone detained in a prison establishment following certification as a suspected international terrorist under part 4 of the Anti-Terrorism Crime and Security Act 2001 and those detained under Immigration Act powers in the interests of national security. Professor Coyle did not know in detail how the police passed information to the prison about concerns they had. In the past it was common that if they had a concern they would communicate orally with the prison or in writing at the point of admission. He did not know if that happened in Scotland. He understood that the same thing happened with the Probation Service. He thought that if a person was going to prison for the first time a report would often accompany the prisoner to the prison and there was often liaison between the Probation Officer and the prison social worker. It was not inevitable that a report such as a Social Enquiry Report would go to prison but that was the best practice.

[73] Under paragraph 2.18 prisoners on call enabling had personal lists and were allowed only thirty five pre-authorised pre-programmed numbers (up to twenty personal and up to fifteen legal). However these personal lists did not preclude these prisoners having access to all globally and locally enabled numbers. The witness could not comment on that last sentence. He was asked how the numbers were pre-authorised and he said that in each prison there was a security department with trained staff to oversee security matters. As he understood it they would physically telephone each number to confirm the address and number, would ask the recipient of the call to confirm who owned the number and if they were prepared to receive calls from the prisoner. He did not know the details of the wording used. The prison staff would have papers in connection with the prisoner and their questions would be informed by that knowledge. They would ask the proposed recipient if he or she would be prepared to have calls made by that specific prisoner. Paragraph 2.20 is in the following terms:

"Operational staff must familiarise themselves with the numbers on the Global Lists at both Estate and Prison level and consult the List regularly for changes."

He understood that the Global List contained, for example, 0800 and chat line numbers. Paragraph 2.21 is in the following terms:

"All prisoners subject to call enabling will have access only to telephone numbers that have been approved by their current establishment. A transfer from one prison to another does not require the receiving prisoner to automatically accept the telephone numbers on the prisoners allowed list."

Paragraph 2.23 is in the following terms:

"Governors must not permit the insertion of any numbers submitted by a prisoner if they have any reason to believe that the number is one submitted on another prisoner's behalf, or if the prisoner cannot justify his/her need to contact the number in question. If there is any doubt, prisoners must be asked to produce further verification for any number they wish to have on their list, e.g. a letter or authorisation from the recipient that they are content to receive calls from the prisoner who is requesting their inclusion on his/her list."

If the prison was in any doubt they would ask the prisoner who the potential recipient was and if they actually knew them. Paragraph 2.24 indicates that on first reception into prison from court prisoners often need to make an early telephone call to family and friends to let them know their whereabouts. The Governor is obliged to make local arrangements to allow a call to be made between the first 24 hours of reception. Reference was made to paragraph 2.29 which reads as follows:

"The Prisoners' Pinphone account is electronically transferred in its entirety to the Transfer Prison from the outgoing prison. The Receiving Prison then retrieves the account from the Transfer Prison and makes any adjustments necessary to the account such as which phones the prisoner can use to reflect the Pinphone regime used in that establishment. It is the outgoing establishment's responsibility to ensure that the prisoner has been placed in the transfer prison on the same day the prisoner leaves the establishment. Failure to do so will prevent the prisoner from making calls on arrival at the new prison."

The prison population in England and Wales at the moment was of the order of 84,000. Scotland's prison population was just less than 8,000. Not all of the 84,000 prisoners were subject to call enabling. It was known from official figures that there were around 1,000 category A prisoners. There were no figures for the other groups but Professor Coyle estimated that there would be less than 1,000 in total in the other groups so that there would be under 2,000 prisoners covered by paragraph 2.16.

[74] In Scotland the regime of call enabling plus a message applies to all prisoners. There is no attempt to differentiate between prisoners in Scotland. There is no message attached in England. The premiss they work on is different. Their system attempts to insure that someone who might be liable to be harassed will not receive a call at all. In Scotland the recipient would receive the call but could decide not to accept it. Even taking a call and having to hang up could amount to harassment and a prisoner could do it repeatedly. It was put to him that the view of Michael Duffy, about whom more later, was that the categories would be insufficiently precise and not a sufficiently comprehensive way of assessing a risk. He would want a more detailed manner of doing so. Professor Coyle was asked if that was necessary. He understood Mr Duffy's position to be that most prisoners did not require the message. The SPS had a good record of sentence management and assessing risk and Professor Coyle thought that many of the issues would already be known to the staff. They assessed the background, the family, the history and requirements of individual prisoners. The SPS were to the forefront in developing management, especially for long term prisoners. It might take time to do a proper assessment but key information such as the nature of the offence would be known immediately. He thought that the warrant would contain details of the conviction and sentence, although the warrant itself would not be detailed. Though the information would be limited, police would also pass specific information to the prison and he suggested that the Social Work Department would do the same as the Probation Service do in England. He was not aware of the current provision in Scotland as to social work reports, in other words whether they went to the prison or not, but it would be good practice for them to do so. Prisoners had to be treated as individuals and that included obtaining information from other agencies. In England the balance had been considered and they had decided that the categories in 2.16 were enough. It was done with a relatively small proportion of the population and no new regime or budget was required. It was part of the core business of the prison department. There was no reason why it could not be done in Scotland. The blanket imposition of the message was the equivalent of saying that all prisoners were in category A.

[75] He was referred to the affidavit of Rona Sweeney and in particular to paragraphs 30 to 33 thereof. In those paragraphs she opined that if prisoners were embarrassed about the message they could make arrangements with their family that only certain people would answer the call. Her experience was that prisoners were not generally embarrassed by the message, imprisonment being a matter of public record. She also deponed that SPS did not receive many complaints from prisoners about the message. Prisoners were seldom shy and would let you know if they were unhappy about something. She did not think it would be desirable to have the message applied only to certain prisoners because of the risk of bullying or exploitation by prisoners to whom the message did not apply, who could exploit the situation by seeking payment to make calls on behalf of those to whom it did apply. Furthermore, if the message were to be applied differentially SPS would require to undergo a risk assessment. She thought that it would be similar to the process gone through in relation to prisoners to be transferred to the open estate. An effective risk assessment regime was multi-disciplinary and required resources and time. The SPS did not have all the information needed and sought input from the police and community based social work department. Much of the prison generated information would relate to risks to the good order to the establishment and would not readily lend itself to the level of risk posed to the community and victims. It was only after receiving information from community partners that SPS found out if there was an issue with domestic abuse or child protection. In response to this Professor Coyle pointed out in passing that prisoners in the open estate who actually go home also have the message attached to their telephone calls. The premise on which SPS was proceeding was based on an assumption that those to be excluded from the category of those who needed the message to be applied should be assessed, whereas the other way to do it was to assess those to be included. Miss Sweeney had concluded that those to be excluded would be a small number. The SPS had a good record of dealing with bullying, dealing with the bullies rather than the bullied. He was not an expert in the risk assessment process carried out in connection with transfers to the open estate. These were people who were likely to be able to go home regularly, they posed no threat to the public and the comparison made by Miss Sweeney was one with which he was uncomfortable. She seemed to be suggesting that only those prisoners who were suitable for the open estate should not have the message attached. He did not agree with that. In paragraph 34 of her affidavit Mrs Sweeney had indicated that the risk assessment process for the open estate was not an insignificant task and even a much reduced version of it for every prisoner who wished access to the telephone would be resource intensive and might be cost prohibitive not only for the SPS but also for their community partners. Professor Coyle said that she was comparing apples with oranges.

[76] In England governors might, with the agreement of the area manager, place the whole prison or parts of it on a call enabling regime if there was an operational need to do so.

[77] Paragraphs 13 to 15 of Professor Coyle's first report dealt with call barring. All other prisoners (that is prisoners other than those subject to call enabling) are subject to a call barring system which means that the prisoner can call any number except those specifically barred for him or her by the prison. Paragraph 2.17 of the PSO reads as follows:

"In addition to the category of prisoner described in paragraph 2.16 above Governors may, with the agreement of their Area Manager, place an establishment on a call enabling regime if there is an operational need to do so (e.g. the level of drugs circulating within the prison). Equally Governors may wish to place parts of the prison (e.g. on a wing basis or prisoner basis within a single wing or unit) on both a call enabling and call barring regime. The Governor will on an annual basis or in the case of major regime change (e.g. when a prison is re-rolled to house women as opposed to house male prisoners) review the need to continue with the current Pinphone telephone regime."

[78] If the holder of a number phoned up to complain then that number would be taken off the list. That applied to all prisoners. The prison might well question why but if any subscriber said he did not want a call then that wish would be respected.

[79] Most prisons in England and Wales used call enabling for the majority of prisoners. Professor Coyle contacted governors and they said that the order was still in existence but the practice now was that the vast majority of prisoners were call enabled but only those referred to in paragraph 2.16 of the PSO were checked. Paragraph 16 of his first report deals with pre-recorded messages. He noted the official in charge of the PIN phone telephone system within HM Prison Service writing on 10 October 2006 to the petitioner's solicitors as follows:

"In early autumn 1999 we introduce (sic) the following message which the caller and call recipient heard before being connected to speak to each other. It ran for about 23 seconds and was on the following lines 'You have a call from John Smith who is a prisoner in HMP Full Sutton. If you do not wish to receive this call dial 4688.' The prisoner paid for the pre-recorded message. The plan was that the same pre-recorded message would be used in all cases.

As you can see from the previous paragraph its introduction at Full Sutton ran into a series of objections from both prisoners and staff. It was felt to be of little operational value so a few weeks later the facility was withdrawn on the advice of Prison Service managers. The Prison Service took no direct legal advice on the issue of its withdrawal.

The current version of our Pinphone system does not have this facility and it has never been reintroduced since its withdrawal in 1999."

Professor Coyle did not know much about the history other than what was in that letter. He reiterated that the emphasis in England was in making sure the call was not made in the first place, rather than alerting recipients to the origin of the call.

[80] He was then referred to paragraphs 4 to 7 of his later report. That dealt with the position in the Republic of Ireland. According to his original report, the Irish Prison Service holds more than 3,000 prisoners in fourteen prisons. Rule 46 of their Prison Rules (2007) deals with prisoners' access to telephones. Rule 46(12) provides that the Governor may, if he considers it appropriate, arrange for recipients of telephone calls from prisoners to be informed as to the origin of the call in advance of it being connected. He understood that that provision had not yet been implemented.

[81] In Ireland, prisoners provide the prison authorities with details of up to four telephone numbers which they might wish to call and prison staff then call the numbers to confirm that the persons at that number would be willing to take calls from the prisoner. The prisoner is then given a telephone card with a PIN number which he can use to call a number from his nominated list. Any of the four numbers can be changed on request by the prisoner. It appears from the affidavit of William G Connolly, Director of Operations in the Irish Prison Service, that the prison officer will dial each of the numbers provided, will explain the nature of the call and will ask the recipient to confirm that persons are willing to take the call as well as explaining that the call will be recorded. Professor Coyle was not able to say why the Irish prisoners were restricted to four numbers whereas there were twenty in Scotland and thirty five in England and Wales. It might be that if they were determined to check numbers the service would simply decide what was practical in terms of numbers.

[82] The 1999 Direction mentioned PANs. He assumed that that meant that numbers were pre-approved but he understood that that was a misnomer. The SPS said that it was not possible to pre-approve numbers and the reference to PANs had been removed from the later Direction. He said that SPS had a good history of not issuing instructions which could not be implemented and it jumped out at him that this instruction could not be. He did not know if everyone had twenty numbers in Scotland. He reiterated that not all numbers were checked in England and Wales, only those subject to paragraph 2.16, and in Ireland the numbers were limited. SPS said that they could not check all of the numbers and that there was no other way of dealing with the phones. He was referred to page 8 of his original report and in particular to paragraph 41 thereof, which is to the following effect:

"It seems to me that it would be difficult to justify an argument that all members of such a disparate group can without exception be reasonably held to be liable to present threats to the rights and freedoms of those whom they might telephone simply on the grounds that they are in prison. This appears to be the position of the SPS."

[83] The "disparate group" had been set out in the three preceding paragraphs and covered the wide range of people who are admitted to prison.

[84] That remained his view. He did not think it was in the best traditions of the SPS, which had a good record of recognising differences between prisoners. Paragraph 49 of his first report reads as follows:

"49. As described above in paragraph 34, the Respondents argue that the pre-recorded message is 'designed towards: preventing former victims being contacted; preventing grooming; preventing the contacting of those who have been previously harassed by a prisoner prior to imprisonment; and is in recognition of those who for any other reason wish not to be in contact with the prisoner'. The message does not in fact prevent prisoners from contacting these persons. The prisoner is able to call any of those mentioned above and it is then up to the recipient to refuse to take the call. The onus is placed neither on the prisoner nor on the Prison Service, but on the recipient of the call. If the aim is to prevent people being contacted then every effort should be made to prevent the prisoner making the call in the first place."

[85] He said that even receiving a call from prison may be harassment. England and Wales emphasised the stopping of the call in the first place.

[86] Mr Duffy's comment in his affidavit that most ordinary prisoners did not require to be checked was not logical. It was not logical to say that all twenty numbers had to be pre-approved but not all needed to be checked. The witness agreed that most ordinary prisoners did not require to be checked. The same issue had arisen thirty years ago. It used to be an offence not to write a letter on prison notepaper and the envelope used to bear a prison stamp. That was felt to be a safeguard and there was an assumption that prisoners would abuse the system but it was eventually agreed that that was not the case and prisoners could now use their own paper. Staff could check letters but in practice there was no censoring. There were arrangements for high security prisoners in England and Wales and perhaps also in Scotland.

[87] The SPS arguments did not sit comfortably with the way they managed their prisons. The message itself was wrong. It said the message came from a prison, that the call would be logged and that it "may be recorded and monitored". The Direction said that it "will be recorded". He did not know why there was a discrepancy. In practice all calls from prisoners were logged and recorded but only a limited number were monitored. Mr Duffy, whose evidence had been interposed, thought that if the message did not say who was doing the logging etcetera it might be sinister or alarming. He did not accept that. There was no analogy with a bank. He accepted that the PSO in England and Wales provided for a notice to the prisoner that he or she should tell the recipient about logging etcetera. That had also been the case in Scotland. Prisoners knew that calls were logged and recorded but the message beside the phone reinforced that. He was not aware of any other body which had such a message going to a recipient. He was asked whether another message could be imposed if it was thought that the current one was sinister. In answer he said that SPS argued they had a legal obligation to let the recipient know that they were being recorded but they did not. Nonetheless there might be a way of recasting the message. It could be said that the call was from the prisoner because at the moment the recipient did not know if it came, for example, from the Governor. The English message said that it came from the prisoner.

[88] Paragraph 6 of the 2008 Direction dealt with the submission of a list of numbers by the prisoner. In terms of paragraph 6(3) the Governor could on reasonable grounds refuse to allow the inclusion of any telephone number requested by the prisoner and in terms of paragraph 6(4) might require the prisoner to demonstrate that he or she had the consent of the relevant telephone number holder to call the number. Professor Coyle found it difficult to see how harassment was reduced by telling the prisoner to get in touch with his wife and asking her to confirm that it was alright to call. He repeated his evidence that SPS had a good record of treating prisoners as individuals and could deal with bullying. A raft of things differentiated between prisoners, for example their work, and there was no reason why SPS could not manage the problem if there were one. He did not necessarily accept that there would be. It was not an issue in England. The English did not understand what these arguments were all about. He referred to paragraph 17 of his supplementary report, dealing with certain paragraphs of Rona Sweeney's affidavit. It is in the following terms:

"Paragraph 22: The message acts as a deterrent. Between 28 September 2007 and 9 December 2009 there were 220 intelligence reports of threats made by phone. If the message did not exist these figures would be higher. Another interpretation of these figures is simply that the pre-recorded message does not achieve its purpose. One might assume that these 220 reports refer either to cases where the recipient did not anticipate a threat or was to (sic) afraid to reject the call, knowing that the caller would be aware that this was being done. It would be much better if the SPS had a system which had prevented these 220 calls being made in the first place."

He said it would be helpful to understand more clearly what Mrs Sweeney meant. Was she talking about recipients who were threatened and called back or were the threats picked up in monitoring. He emphasised that the onus was on the recipient and it showed that the message was not working. Calls must have got through and the phrase "intelligence reports" did not tell us very much.

[89] In cross-examination he said that he understood that the challenge was to the first part of the message. He had read the complaints but he would need to refresh his memory about the Commissioner's attitude. He was asked whether a warning about logging was unique and he said he was not aware of any other warning to the caller. He could not think of any reason in law or practice why the recipient of a call should be advised of it. It was put to him that a bank often had a message saying that calls would be recorded but that it did not need to say who was doing the recording because the person making the call knew who it was he had phoned. He agreed with that. He was asked whether he knew that, as a result of the case of Copland v UK (2007) 45 EHRR 37, an employer who might monitor employees' calls was infringing their rights and should tell them that the calls would be monitored and recorded, on the basis that both the caller and the receiver would assume there was no monitoring. His position was that he would assume that all official calls were subject to it because of the world we live in. He would not assume that all domestic calls would not be subject to eavesdropping, having just spent three years in Northern Ireland. I am afraid that I regarded that answer as rather flippant. Eventually he agreed that two people would assume in the ordinary course that no-one was listening in to their calls, that they had an expectation of privacy and that if someone was listening they must have lawful authority to do so. It was put to him that the prison could not indulge in covert but overt surveillance, that the prisoner was told about the regime, that if he used the phone he was deemed to consent to it but that if his grandmother got a call she would assume that her right to privacy was being respected. He agreed with that. He also agreed that she should be told that she might be monitored. He had not thought of the terms of an alternative message which would be acceptable. It was suggested to him that if a prisoner's grandmother who did not know he was in prison was told that the call was being logged she might be put on her enquiry as to why that was being done. He agreed with that but said it was hypothetical. It was suggested to him that the call was not being monitored for quality assurance purposes but as part of a strategy to stop, for example, drugs getting into jail so that it was only fair to tell the recipient that it was being recorded and by whom. That told them that it was serious and could have repercussions. He agreed with that but said that there were other ways of doing it. It was suggested that if the call was overtly recorded etcetera it would stop arrangements being made for a crime and if deterrence was the purpose then one would wish to deter both the caller and the recipient. Professor Coyle's answer was that the SPS were only responsible for the prisoner. He accepted that some prisoners would take risks because the phone was not always monitored but said that those who were likely to do so could be identified. He could see an argument for warning both sides but there had to be a balance. Other jurisdictions put the onus on the caller and he understood that calls were rarely monitored. He was asked whether he disputed evidence given by Mr Duffy that before 2004 notices to prisoners to tell people that calls were monitored were ignored. He did not know. In his supplementary report he commented on the case of RD, about which more later, and he indicated that he had read the decision of the Inner House in this case. He was referred to statement 17 in the Record at page 18 which is to the following effect:

"That the Scottish Prisons Complaints Commission ('SPCC') investigated a number of complaints by prisoners in relation to the new telephone system introduced at Scottish prisons, including complaints in relation to the recorded message. The SPCC's recommendation was that the recorded message be amended and that part of the message that identified a call as originating from a prison be deleted. That was on the basis that (i) the recorded message was an interference with a prisoner's communications with his family and was in violation of Article 8(1) of the Convention; (ii) that it was questionable whether there was proper legal authorisation in Rule 54 of the Rules for insertion of the message; (iii) that the evidence strongly supported the conclusion that this intrusion of the prisoners' rights was not necessary; and (iv) that the intrusion was not trivial. The SPCC's recommendations are produced. In answer to the respondents' averments in Answer 17, admitted that the message was changed so as not to identify a particular prison. The reasons for that change are not known and not admitted. Quod ultra denied, except in so far as consistent herewith."

Statement 18 was read. It is in the following terms:

"That the Scottish Prison Service had not identified to the petitioner any rationale for the introduction of the recorded message identifying his calls as coming from the Prison. On 13 March 2006, the Justice Minister, in her answer to a written question submitted by Caroline Leckie MSP, has advised the Scottish Parliament that the Scottish Prison Service believed that the recorded message provided 'the public, for example victims or vulnerable witnesses with some safeguard against unwanted calls'. In answer to the respondents' averments in Answer 18, reference is made to the SPCC's recommendations referred to in Statement 17 and in particular to the following statement:

"....we also have concerns with the 'necessity' (as per Article 8(2) of the ECHR) of notifying recipients of a calls origin. It is to be expected that prisoners will experience high anxieties, stress and frustration and that on such occasion (sic) some will be abusive or even threatening towards people in the community, including and perhaps especially their spouses, with whom they communicate. It is not surprising then that the [Scottish Prison Service] Head of Communications has received a number of complaints from victims and witnesses who received such calls. However, these complaints to [Scottish Prison Service] have been from people who either knew or had every reason to suspect who made the call and where the call originated. For those persons a pre-recorded message stating that the call was from a prison would serve no purpose whatsoever. The pre-recorded message serves to give notice to recipients of phone calls from anonymous callers where the call originates. It is at least arguable that the fact that complaints have been received by the [Scottish Prison Service] Head of Communications in the absence of a pre-recorded message evidences that the need for such a message is speculative at best."

Professor Coyle was referred to 7/3 of process, the letter from the SPCC to Tony Cameron in January 2005, and in particular to page 3 thereof where the quote referred to in Statement 18 appears.

[90] He was also referred to the preceding paragraph in that letter, which is to the following effect:

"The same question of legal authority also arises for that part of the pre-recorded message that advises recipients that the call is subject to monitoring and recording. However, given that the monitoring and recording of calls is authorised by law I believe this message complies with the legal duty to advise persons when their reasonable expectation of privacy is being interfered with and it is thus 'necessary'. It also provides ample opportunity for any call recipient to refuse the call. If a call is accepted and turns out to be from an anonymous abusive caller the recipient can hang up and never accept any future calls that are preceded by that part of the pre-recorded message. For these reasons we make no recommendation on this part of the message."

He could say that the Commissioner was content with that part of the message. He was referred to 6/11 of process, the letter of 29 July 2004 which I have already mentioned. The Commissioner had broken the message into three parts. Complaint three was about the fact that the phone call was subject to monitoring/recording, complaint four was about the fact that the message advised that the call was coming from a prison and complaint five was about the fact that the prison was named. He agreed that SPS had accepted that naming the prison was not necessary. Complaint four had been carried into 7/3 of process. The conclusion of the SPCC in relation to complaint three (the monitoring and recording of phone calls) read, inter alia, as follows:

"However, the recipients of calls have a 'reasonable expectation of privacy' under the common law and a right not to have their communications covertly recorded. The monitoring is not meant to be covert surveillance. The SPCC agrees that it is legally responsible to advise the recipients of the monitoring/recording of the call. The purpose of the pre-recorded notice is to ensure the protection of the rights and freedoms of the recipients of the calls. As a consequence, the SPCC finds this to be an interference that is authorised by law and proportionate to the purpose being sought and we make no recommendation on this issue."

[91] He was referred to the Inner House opinion in this case and in particular to the report at 2007 SLT 1019. Paragraph 27 was read to the witness as follows:

"[27] It is in failing to take into account, or failing adequately to take into account, the potential for infringement of the Convention rights of third parties, namely, the recipients of phone calls from prisoners, that the Lord Ordinary has, in our view, fallen into error. Each of these parties also has, under Article 8, the right to respect for his private and family life, his home and his correspondence. There must be no interference with the exercise of that right by a public authority except such as meets the dual requirements of Art 8.2. The arrangements which the Governor makes for a prisoner to telephone persons outwith the prison may impinge upon those rights - particularly where these arrangements include monitoring or recording of what they may say in the course of the call. In enunciating at para [22] of his Opinion six propositions, the Lord Ordinary says, among other things:

'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 interest 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."

It was put to him that the Inner House appeared to agree with the Commissioner and he said that he read that. He was asked whether he accepted that in his first report at paragraph 59 he attached little weight to giving notice to the recipient. That paragraph deals with the perceived need to advise recipients that the call will be logged and may be recorded and monitored. It runs as follows:

"The Respondent takes the view 'that while there may be no legal requirement, it was preferable that this be brought to the attention of recipients'.....A number of public and official bodies draw attention to the fact that telephone calls to them may be monitored and/or recorded. To my knowledge, in these other bodies this message is relayed to the person making the call rather than the person receiving it. The Prison Service of England and Wales deals with this matter by drawing this matter to the attention of the prisoner making the call."

Professor Coyle said that he took the view that the Service should tell the prisoner to make it clear to the recipient. That was the practice. Paragraph 20 of his second report, 6/46 of process, dealing with Rona Sweeney's affidavit reads as follows:

"Paragraph 25: It is good practice to advise recipients that a call is being logged and recorded and may be monitored. This is covered in paragraph 59 of my original report. Mrs Sweeney gives the example that someone calling a bank may here such a message before being connected. In this case, it is the person making the call who hears the message, not the person receiving it."

He was asked whether he accepted that it was good practice to give recipients such advice and he said that that had been under discussion. He was pressed as to whether he conceded that there was a need to give a warning and he said that in England and Wales the prisoner does it. Eventually he accepted that it had to be communicated. He was referred to page 40 of 6/35 of process, the PSO. That page contained the notice to prisoners to which I have referred already. It placed an onus on the prisoners to advise the persons they spoke to that the conversation would be recorded and might be monitored by prison staff. It was suggested to him that that meant that the English recognised that there was a need to tell the recipient that the call would be monitored etcetera and that it was in association with a prison and he agreed that since the monitoring was being done by prison staff it would therefore come from a prison.

[92] His report had explained the position in Spain and Sweden as well as Ireland and England and Wales.

[93] In Spain, where there were around 69,000 prisoners in 77 prisons as at the date of the first report, prisoners could apply to the Director of the establishment in which they were incarcerated when their relatives lived far away or could not travel to visit him and when he had to communicate with his relatives or counsel or other persons on some important matter. Prisoners could makeup to five calls per week. They had to be made in the presence of an official and should not be more than five minutes in length. The cost of the call was met by the prisoner except in certain circumstances.

[94] In Sweden there were more than 7,000 prisoners in 55 prisons. In practice a prisoner applied in advance to have a telephone number registered on the system which controlled the numbers which they could call. Numbers were checked via the police register, security registers and by contact with other authorities. There was also a check against the telephone numbers of plaintiffs in the prisoner's case. The details of numbers were checked by prison staff and calls might be subject to monitoring. There were no controls on telephone calls from open prisons.

[95] He agreed with Mr Moynihan that his study in connection with foreign countries was a desk study. He agreed that while a reading of his report might suggest that only 2,000 prisoners were on call enabling in England and Wales, that was not what happened in practice. It was not at variance with the order since governors were allowed to do it. He could not say why the vast majority of prisoners were on call enabling but he was able to give an informed opinion.

[96] Paragraph 3 of his supplementary report reads as follows:

"My subsequent enquiries indicate that in practice the vast majority of prisoners are now subject to call enabling. The numbers supplied by all prisoners in the categories listed in my original paragraph ten are physically checked by security staff. The procedure is that the prisoner submits the number, the name of the person and the relationship and a member of the prison security staff will then call the number to verify the details. I am told that there are about 1,000 category A prisoners. The total numbers in the other groups are not available. For all other prisoners, only 'a sample' is checked."

The original paragraph ten referred to the category A prisoners etcetera in paragraph 2.16 of the PSO.

[97] He said that in other words staff called the numbers for those in that category and for all other prisoners a sample was checked. He assumed that the checking was done in relation to a sample of prisoners rather than a sample of numbers but he did not know for sure. He assumed that those other than category A etcetera prisoners were placed on call enabling under paragraph 2.17 of the PSO.

[98] He had inferred that a PAN in Scotland meant a number which had been investigated in advance and authorised. In England it did not mean that, other than for those covered by 2.16.

[99] He said that he had a very high regard for Mr Duffy. Mr Duffy's evidence had been that pre-approved meant permitted unless there was a reason to withdraw it. Professor Coyle said that Directives should be understood and to use a word like pre-approved and not mean it to have its literal meaning was confusing. It was suggested that the same problem arose in England but Professor Coyle said that he was not advancing their position as a paradigm. It was simply one example of reaching the same end. He was asked if he could explain the reference to prisoners identified as being subject to harassment procedures in paragraph 2.16 of the PSO. He was not able to. It was put to him that Mr Duffy said that a warrant contained rudimentary information such as a reference to a breach of the peace or an assault and so the prison did not know if it referred to a pub brawl or a domestic incident. He agreed with that. He agreed that the prison did not have access to a wider pool of information. He accepted, as Mrs Sweeney said, that there was a limit to the information available. It was not a surprise that, when a more thorough risk assessment was done, outside agencies had to be involved. He agreed that that could be time consuming for both and that confidentiality could be a problem. There might be Article 8 considerations if information was disclosed. He agreed that if a prison officer called the number asking what the relationship of the recipient was and whether they had any objection to receiving calls that could seem to be invading their privacy. He agreed that if someone asked for a call to be barred a prison officer might ask for more information. He would not concede that it was harassment if enquiries were more intrusive. He was not sure if he could agree that a structure modelled on that of England and Wales could infringe Article 8. He was referred to 6/11 and in particular to complaint two thereof. That was to the effect that having to provide SPS with information on recipients was intrusive and raised privacy issues as there was no guarantee on how the information was being maintained by SPS and the intrusion was not necessary. The SPCC made no recommendation on this issue, given the assurances with which they were provided. It was suggested that if an assessment to gauge risk went beyond the bare bones of the name, number and relationship of the recipient it could be intrusive. Professor Coyle said that that would not be the task of the security officer. It was put to him that he had said a prison officer might ask why a call bar was being sought but he said that that was not the basis of this complaint. In England there was a balanced approach. It was suggested that the balance was in the context of the natural reading of 2.16 applying only to 2,000 prisoners but in practice that now applied to the vast majority. The Professor had not enough knowledge to answer that question. In England those who needed close supervision and those in 2.16 were identified and individually checked. He did not know why others were included. He was asked about the situation where a prisoner did not want, for example, his grandmother to know that he was in jail and the message alerted the relatives that that was the case. He was not sure that that was what the petitioner was arguing. His children knew he was in jail. In Ireland the prison officer would phone and under the English and Welsh system that would also happen if he was on the 2.16 list or if he was one of the sample. If that were going to happen a prisoner would not put his grandmother's number on the list. As far as employers were concerned, in England a prison officer would phone and ask the holder of the number for his permission, so a prisoner who, or whose relatives, did not want their employer to know that he was in jail, would not give the number. In Ireland prison officers contacted all four people on the list. He was not familiar with Stewart Potter's circumstances other than what he had read in the papers. It was put to him that he said he arranged to phone at suitable times, for example he called Mr Docherty when his mother was out. It was suggested that if the sample threw up Mr Docherty's number and he was in Ireland she would be contacted and might say she was not taking calls. I understood Professor Coyle to agree unless Mr Docherty was the subscriber. Paragraph 21 of 6/46, his second report, commenting on paragraph 27 of Rona Sweeney's affidavit was then referred to. I have already quoted from it.

[100] He thought that twenty numbers was apparently high because SPS said that they could not cope with it. He was not assuming that something of the order of four would be acceptable. He was just saying that Scotland could not cope with twenty and if so minded the SPS could operate another system. It was suggested that the SPS had chosen to give greater freedom than their counterparts in Ireland and he said that they had allowed a greater number. He could draw no conclusion from the fact, if it be a fact, that Mr Potter always had around seventeen numbers and that the average for a prisoner was eleven. He agreed that there would be consequences if, as a result of success in this case, the SPS reduced the numbers available to four. He did not think that that was necessary however. It was suggested that Spain was even more draconian and he referred to the information which I have already mentioned. He could not say if the Royal Decree of 1996 under which the procedures operated in fact mirrored practice. He agreed that different countries had a variety of ways with some benefits and some disadvantages but they achieved a balance. He accepted that in Scotland some six years after the introduction of the message practices had settled down and even Mr Potter had accommodated the message. His position was that prisoners accepted reality whether it was right or not. It was put to him that the SPS attached high priority to family contact and that they were liberal in applying a limit of twenty numbers. He did not know if that figure was reached consciously. There might be other considerations to do with the supplier. It was suggested to him that such was the success of their policy that 2 million calls were made a year. He did not know what was meant by success. It was also suggested that prisoners accepted and adapted to the world as it was and that there was a premium in continuity unless there was a good reason for change. He did not accept that completely, pointing out that many prisoners accepted the reality of slopping out. Some prisoners might not be happy if the limit was reduced to four. It was suggested that they might still be unhappy if they were told that the benefit of this action was that the message was dropped but on the other hand they were now required to tell the recipient themselves that the call was monitored by prison staff. I understood Professor Coyle to agree with that. If either of those options were taken the prisoners might be worse off in ways which could not be predicted. Mr Duffy had suggested that there might be an operational incident if there was a change to the system which had been settled into but Professor Coyle said that dealing with that was the skill of good prison management. It was put to him that Mr Duffy had said that systems had to be carefully assessed from the bullying perspective to see if that problem would be opened up. In part, the blanket policy in connection with telephones was looked at from the perspective of risk and it was thought better to have no difference between prisoners to stop the risk of bullying or exploiting. The Professor said that that argument was not untenable but was rather surprising, as he had pointed out in paragraph 12 of his supplementary report. That runs as follows:

"I must confess that I find this line of argument rather surprising. The SPS....has prided itself, quite rightly, for many years on its ability to deal with the prisoners in its care as individuals rather than as a homogeneous, undifferentiated group. It continuously makes assessments about prisoners in respect of a wide variety of issues, such as the prison which they should be allocated; the hall or unit in which they should be held; individual sentence plans which cover the types of work they will do, whether they need education, various programmes to which they should have access; their health and social requirements; and many more matters. This information will already be held by the prison and could form a useful basis for any decision about the need for a pre-recorded message to precede telephone calls made by certain categories of prisoner."

It was better to avoid the problem arising in the first place. He was asked whether he was aware that in England such was the potential for abuse that abuse would be dealt with on a disciplinary basis (doubtless under reference to Condition 2 of Annexe A to the PSO). Professor Coyle said that Counsel was assuming that that related to bullying. He was asked about exploitation and was referred in terms to paragraph 2 at page 19 of the PSO. It is in the following terms:

"Calling or attempting to call unauthorised telephone numbers, using PIN numbers which are not yours, or handing the phone to another prisoner to continue the conversation initiated by the original prisoner on their PIN number may result in disciplinary action against you."

It was put to him that the situation might involve bullying or exploitation or it might be consensual but nonetheless it was on the notice on the basis that it was better to avoid it than manage the consequences later. He said that that was not necessarily the case because on that argument one would never differentiate between prisoners on any basis. He agreed that the SPS managed prisoners individually so far as possible. He also agreed that balance might be a fine management decision and that it was best taken by those managing the SPS today. He was asked whether he would expect Mr Duffy to do something that might cause problems and said that because of the high regard he held him in he found this all the more difficult to fathom. Mr Duffy had given evidence that he could not think of a way in which he could warn about monitoring without referring to the prison and the message would inevitably refer to the prison because the recipient would want to know who was monitoring him and why. Professor Coyle understood that and understood why he reached that conclusion. It was put to him that Mr Duffy, when asked about his comment about ordinary prisoners, said that it was loose phrasing and that the alternative to ordinary prisoner was the prisoner at a higher level of security. There were around ten of those for whom management was more bespoke in connection with calls and visitors and he was also talking about those in respect of whom more information was given. Professor Coyle said that that was not a comfortable reading of the comment. It was put to him that Mr Duffy's position was that he was not confident that an alternative system requiring a risk assessment would be practicable in terms of resources or assured enough given the limited sources of information. It was also put to the witness that Mr Duffy said that the option to hang up was used by 10% of people. Professor Coyle was unsure what conclusion was to be drawn from this and it was suggested to him that it meant that the system worked. His position was that maybe some recipients were afraid to hang up. Mr Duffy had said that if a prisoner wanted to harass his wife he would know that she was not taking the call but if she asked for the call to be barred she would be escalating matters by complaining to the authorities. Professor Coyle wondered how the prisoner would know that she had asked because the authorities would not tell him. It was suggested that he could work it out but Professor Coyle said that that could not be assumed. He was asked whether he was happy to take the risk that a prisoner who might abuse his wife would draw that inference but he did not think that that would be a consequence of making that change.

[101] I have to say I have some difficulty with that passage of evidence.

[102] It seems to me that the inference referred to by Mr Moynihan would be inevitable.

[103] I am also concerned about the interaction of Rule 54(3) of the 1994 Rules and paragraph 4 of the 2008 Direction. On one reading of that, where a complaint is made by a person who has received a telephone call from a prisoner it is at least arguable that an officer might require to tell the prisoner why he was not being allowed to call the number and that might reveal the reason.

[104] Whether that is right or not, the inevitability of the inference is such that I find myself unable to attach any weight to Professor Coyle's last few remarks.

[105] In re-examination he said that the fact that there were 2 million calls per annum did not mean that the system was a success. He could not say it was a popular system. Prisoners were likely to accept life as it was. It did not mean they were happy. He was not a lawyer and the question whether recipients had a legal right to be told of monitoring was a matter of law. Assuming they did, there were various ways in which that right could be respected. The present way was a message and in England the situation was different. The notice at page 40 of the PSO had to be placed next to the phone but it did not say that the prisoners had to tell the recipient that the call would be recorded and might be monitored by prison staff. It simply said that it was the prisoner's responsibility to give the necessary advice. It was suggested that perhaps there was no legal obligation in England and he said that when he was a governor if he had an obligation to do something he would not tell a prisoner to do it. Problems about information gathering, the limited nature of the information which might be available and the fact that different agencies were involved were pretty universal ones. They were applicable in England but England got on with it despite that. Mr Duffy might have been talking about problems in the first week or two when indeed there were particular problems. He was referred to page 7 of the PSO dealing with arrangements for reception and with telling people that the prisoner was incarcerated. Although the paragraph did not deal with it, Professor Coyle said that there would be an assessment in the first forty eight hours. It was put to him that if a prisoner gave his grandmother's number the consequence might be that she would find out that he was in prison so he would have to make a choice whether to forego speaking to her at all. He agreed with that. The same was true of children. The prison would get in touch with the subscriber, not the children and a balance had to be drawn.

[106] With that the petitioner's evidence was closed.

Evidence for the respondents
[107] I have already indicated that Michael Duffy's evidence was interposed between that of the petitioner and Professor Coyle and I now turn to it.

[108] He had submitted affidavits dated 23 April and 15 July 2008 and they were accurate, he said. He had also studied Professor Coyle's reports.

[109] Mr Duffy was 60 years of age and was a former Director of Prisons with SPS. He was now seconded from the SPS and was working part-time on a project for the Scottish Government.

[110] Before becoming Director of Prisons, Mr Duffy was Operations Director from 2002 to 2003, having been Area Director before that. He had been a member of the SPS Board since 1992.

[111] He joined the SPS in 1972 as a prison officer at HMP Edinburgh and was in due course promoted to management grade and then Assistant Governor at Edinburgh. He worked as Assistant Governor at Glenochil and in 1983 he was promoted to Training Governor at HMP Perth. In 1986 he was appointed Governor in Charge at Penninghame and in 1987 was made Deputy Governor at Edinburgh. In 1989 he took a job as Head of Planning for the SPS and in 1993 was appointed Governor in Charge at Perth. When he was promoted to the Prisons Board as an Area Director he had operational accountability for half of the prison estate in the country. When he was Director of Prisons he was accountable to the SPS Board for the operational management of the whole public sector prison estate. I have set out his CV in some detail in view of what he had to say about his experience in connection with bullying. The messages were played in court on CD. They were delivered by a perfectly pleasant female voice and the particular message under consideration was as set out previously, namely:

"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."

[112] The message was first used at Kilmarnock Private Prison and in 2003 there was commenced a programme to roll it out across the whole estate. When initially introduced the particular prison was identified and that was changed following a recommendation by the Commissioner. The point first came up in connection with Peterhead where it was known that a great many sex offenders were incarcerated.

[113] Mr Duffy was referred to 7/3 of process, the letter from the Commissioner to Mr Cameron in January 2005. He had been consulted about the issue of a pre-recorded message coming from a prison but he had not seen the letter or the ruling. He was aware that a recommendation had been made that the reference to a prison should be deleted. He was involved in consultation as to what message could be put on if not the one in question. He felt that a message was required because SPS were recording conversations and it was good practice to let recipients know. He also felt that they should know the call came from a prison. He had not seen 6/11 of process, the letter from the Commissioner to the petitioner but agreed that it appeared that the Commissioner was content with the restriction to twenty numbers, that no recommendation was made in connection with the second complaint, about the provision of information on the recipients and that the Commissioner appeared content that there be a reference to monitoring and recording.

[114] SPS had no intention of carrying out covert surveillance and needed to alert the prisoner and recipient of the logging, monitoring and/or recording. He recalled working on various phrases so that the message could be edited and not refer to the fact that it came from a prison. He was unable to make any change. One reason was that the message sounded sinister. Just saying that it would be logged etc. would cause alarm in the recipient. If he received a message like that he would put the phone down. It was more alarming since it did not explain why the call was being logged etc.

[115] There were other reasons why the message was not changed. When the package was bought some years ago SPS tried to bring in an initiative to support victims and give families and people outside prison more control over calls. There were two reasons. One involved witnesses and potential harassment and the other involved the question of domestic abuse. SPS were aware that in connection with the latter they would not know much about it and could not control it themselves. They thought that the recipient should have the power to decide to take the call or not. Paragraph 3 of Mr Duffy's first affidavit indicated that at the time of the introduction of the new phone system the Scottish Executive and others were continually pressing SPS about the needs and rights of victims and it was felt within the SPS that the opportunity should be taken to introduce a better balance. Having considered the Kilmarnock experience and in recognition of the fact that their playing a part could be a valuable contribution, SPS thought it would be important from a victim perspective to have a message included in a phone system in SPS prisons.

[116] His affidavit indicated that he supported the system even more now than he did at roll out. Prisoners and their families were used to the message so any concerns about it which they may have had were gone. Complaints about it were virtually unknown. Without the message complaints could not be managed effectively and people on the outside would receive unwanted calls. Removal of the message would reduce SPS's effectiveness in terms of protecting victims and dealing with complaints. A conscious decision had been taken to think more about potential victims who did not perhaps want to be pressurised into visiting or bringing things into prison or who simply did not want to speak to the prisoner. Their rights were being respected.

[117] All prisoner phone calls were currently recorded but not all would be routinely monitored. It would be unnecessarily oppressive and a waste of resources. Barlinnie had 91 prisoner telephones and each one might have five hours of recording time per day so that amounted to 450 hours potentially of recording per day. It was calculated that around 90 officers per week would be needed to monitor calls and they would need appropriate office space etc. Barlinnie comprised around one fifth of the total prison population. In most instances where there was monitoring it was intelligence led although there was also a process of random selection. The power to listen to calls which had been recorded was a deterrent but clearly any unacceptable behaviour had taken place by that time.

[118] It was put to him that Professor Coyle's report said that the SPS carried out risk assessments. He agreed that they did but it depended why. In most cases there was a degree of control and the information needed to assess risk was often in prison, for example the prisoner's security category or if he was likely to escape. Information about such matters as domestic abuse was not routinely provided to SPS. There was no information about the domestic circumstances of prisoners in the overwhelming bulk of cases and information about witnesses and people outside the prison was not routinely provided. In particular cases the police might let them know if there were concerns. SPS did not have the information for assessing risk outside prison. That was one of the reasons why the message was put on. They could not control what happened outside and thought it best to have a message to let the recipient or a potential victim manage it themselves. While Professor Coyle's opinion was that the fact that prisoners knew of the recording was a deterrent, Mr Duffy said that that worked for many prisoners but not all.

[119] In his affidavit Mr Duffy said it was not possible to say how big a problem phone harassment was statistically. There were no records from the period before the system was introduced. If members of the public were unhappy about calls or correspondence they could phone or write to the governor but the governor did not notify SPS headquarters. The details of the complaint would be kept in the prisoner's file. Mr Duffy knew that it was a regular if not frequent occurrence that members of the public would complain about calls but he only knew this anecdotally. Even now there was no central register of complaints about calls. They were simply dealt with by the governor. Things had improved since the introduction of the PIN system. In the early stages he visited prisons to monitor how it was working. He asked staff about complaints and was told that they had virtually vanished compared to the previous experience and he did not hear any complaints about the system now. The system had settled and was accepted by prisoners. If there were problems with the system he would expect to hear about it. He was referred to 7/11 and 7/22. 7/11 was a report dated 28 September 2007 to Alan Gray, IT programme manager at SPS headquarters on an analysis of information relating to phone threats. These records had been scrutinised and broken down into specific headings. They showed that there were 113 threats against a prisoner, 26 against a member of staff, 12 against the call recipient, 54 against another member of the public, one to circumvent the judicial process and one relating to self harm. 7/22 was a similar report to Mr Gray dated 10 December 2009 for the period 28 September 2007 to 9 December 2009. This showed 124 threats against a prisoner, 44 against a member of staff, 17 relating to self harm, 16 threats to witnesses, 10 threats to visitors and 9 threats to victims. Mr Duffy explained that there was an intelligence system and if it was known that abuse took place it was recorded against that particular prisoner. Some prisoners still made threats despite knowing that they were being recorded. The statistics in the paper related to the whole estate. Since not every call could be monitored the statistics did not delimit the problem. One could not predict which prisoner would pose a threat and one could not target a prisoner until information was received. He said that SPS received regular complaints from recipients and was asked whether in light of that it might be said that there was no need for a message because people will complain. He said that some do but many will often not because of their relationship with the prisoner. Professor Coyle in his report suggested that the fact that a person was not picking up the phone meant that the prisoner would know that that person was trying to avoid him but Mr Duffy said that depended on circumstances. It might be true if the recipient was the only person living there but in many other cases there might be other people in the house and one could not say who put the telephone down or refused to pick it up. Without the message the victim had to go to the authorities to complain and that could aggravate the situation. In domestic cases in particular the recipient might not want to do that. It was important to give the victim the option of hanging up. In his first affidavit he suggested that the message was not to the detriment of prisoners. SPS regarded it as an essential service for the public and for victims of crime. The message gave them a choice and in some cases protection. Without the message and the facility to disallow a number the only way to deal with complaints would be to prevent use of the phone or provide that an officer had to dial the number and supervise the call. If a case was made that it could be to the detriment of prisoners to have the pre-recorded message in place for certain calls then action could be taken on that because they were constantly monitoring the system. They had tried hard to get the balance right between giving the recipients of phone calls some consideration while taking account of the needs of prisoners. The message was introduced partly in recognition of the fact that certain members of the public could potentially be vulnerable to harassment, bullying and intimidation and it was thought to be good practice to inform the parties to the call that it was being recorded. He said that there was a significant use by recipients of the option of hanging up. He had sat in intelligence rooms with staff and listened to calls started and stopped. He had also followed up complaints by people. The use of hanging up was quite high. About 10% of calls were put down, amounting to some 100 per day. According to his first affidavit, staff at HMP Kilmarnock stated that calls were routinely put down which suggested that the message was serving a function for people. His first affidavit indicated that when visiting prisons he spoke to staff who monitored the calls regarding their hang-up rates. The proportion of hang-ups was significant within the first twelve seconds. That confirmed that the message worked. He was referred to the affidavit of Alan Gray dated 23 April 2008. Paragraphs 17 to 18 of that are in the following terms:

"17. As part of the ongoing management of the system we wished to examine the likely impact of the pre-recorded message and whether recipients did hang up the call as per the suggestion offered in the pre-recorded message. Some prison staff had provided anecdotal information that some call recipients would hang up the call from a prisoner: some family members or friends would not wish to speak to the prisoner and also that recipients of calls would not wish to be harassed for money or pressurised into taking other actions for the prisoner. The pre-recorded message provided that opportunity without having to speak to the prisoner.

18. We asked our contractors whether they could provide an analysis of prisoner PIN phone hang-up rates against what would be "normal" hang-up rates on telephone calls in a non-prison setting. The length of the PIN system pre-recorded message is some twelve seconds and Siemens reported that for HMP Glenochil between March 2004 and December 2006, when some 425, 516 calls were initiated, the number of hang-ups was 45,046, or 10% of all calls. From 1 July 2007 to 29 February 2008, 190,915 calls were initiated and 23,988, or 12.56% of calls, were hung up. The contractor also looked at the call information from non-prison sources and examined the call hang-up rate across three sectors. As these non-prison calls did not have a pre-recorded message, the contractor considered that the calls hung up within three seconds of the call being answered would provide a representative sample of calls which would be hung up for normal reasons and would give a useful comparator against the hang-ups prompted by the pre-recorded message. From March 2004 to December 2006 3.3% of non-prison calls were hung up. From 1 July 2007 to 29 February 2008, between 5.13% and 8.21% of non-prison calls were hung up, depending on where the call originated."

Mr Gray referred to 7/9 and 7/10 of process in confirmation of these figures but I need not go into them in terms.

[120] Mr Duffy confirmed that Mr Gray's information confirmed with his own anecdotal experience. Mr Duffy accepted Professor Coyle's criticism in his first report that there was no evidence as to why the recipient hung up and he did not know if it included calls hung up by prisoners or just the recipient. Mr Gray had indicated that if there was no universal monitoring there was likely to be a greater number of threatening calls. His own 10% figure however was, according to the staff to whom he spoke, a figure for calls hung up by the recipients. He and the staff believed that the phone was hung up because of the message.

[121] It was put to him that Professor Coyle indicated that, since some people do abuse the system, the message might not be an effective deterrent and that targeted call barring as used in England might be better. Mr Duffy said that call barring was used in Scotland if a member of the public made a complaint. He was asked why that was not adequate and said that if it was known there was a problem the call could be barred but in many instances they did not know that. He was referred to paragraph 47 of Professor Coyle's first report. In this paragraph Professor Coyle indicated that the description "pre-approved number" (PAN) appears to be a misnomer. He also referred to Mr Duffy's affidavit of 23 April 2008 to the effect that numbers are not pre-approved and that they might be changed on a weekly basis and quoted Mr Duffy, inter alia, as saying "also, the numbers of most ordinary prisoners do not require to be checked."

[122] Mr Duffy agreed that PAN was a misnomer. The approval came in the sense that if SPS were not happy with a number it could be removed. Not every number could be approved positively before it could be used. Numbers were approved by default in a sense. The SPS did not routinely check a list of numbers.

[123] Professor Coyle, in paragraph 10, had set out the list of those on the call enabling regime in England in terms of the PSO.

[124] I understood Mr Duffy to confirm that for high risk prisoners numbers could be checked as well as visitors. In recent years there had been around 8,000 in the estate and in paragraph 8 of his second affidavit he gave the annual admissions to SPS estate as being around 33,000. Perhaps only fewer than ten of the 33,000 would be high security prisoners. He was asked about page three of Professor Coyle's second report, where he referred to Mr Duffy's handling of the question whether the pre-recorded message could be used on a selective rather than a universal basis and explained why it would be undesirable in the extreme in his opinion. Professor Coyle quoted Mr Duffy as arguing that if some prisoners were excluded from the general population who were subject to the message they would become a target and they would be bullied. As a consequence this group of prisoners would need to be more intensively managed, requiring an unidentified number of additional staff, a risk assessment would have to be carried out to enable staff to make a judgement about whether a prisoner could be exempted, which would be a massive task placing a burden on external agencies, a risk assessment group would have to be established within the SPS with an additional twenty or so new staff members and decisions would have to be reviewed regularly. Mr Duffy's position was that a risk assessment for phone use was not feasible. The sheer scale of the task and the fact that they would need to contact so many agencies, with resource implications, gave rise to that. It took time to go to other agencies for information and an interim system would be required until the information was available. There might be confidentiality issues and the information might not be made available. When some information came back it might be from the police or the immigration services or customs and might relate to an ongoing inquiry. They could not tell the prisoner about it if they were disallowing use of the phone. A review process would be required. SPS already received information from other agencies on a regular basis and he knew how difficult it was. They obtained information from the Social Work Department in connection with Home Detention Curfews and that could be difficult. The assessments for the open estate recently had to be revamped and that was difficult and time consuming even for a small number of people. In his opinion and based on his experience in the system, if a prisoner wanted to bypass the system they would go to a prisoner who was not barred and either bully him into letting them use the phone or buy their way past the system. If bullying was not managed it was almost unlimited. Systems and training always had it in mind. It had to be controlled or prison would be a jungle. SPS had to try to identify sources of bullying and the phone system was part of that. In general it was better not to differentiate and that is what two phone systems would do.

[125] Mr Duffy's second affidavit indicated that this sort of situation even arose in the outside world. People would sometimes hand out disabled flags to other drivers. In prison it was more of a pressure cooker. At present if there was intelligence that a prisoner was being bullied that prisoner's name went on a list of people to whom the officers paid special attention. Setting up a category of excluded prisoners would increase that list. It was not possible to estimate how many additional officers would be needed. The exclusion would have to be done on the basis of a risk assessment and for an adequate one to be done SPS would have to go to all the key agencies, namely the police, the Procurator Fiscal, the Social Work Department and their own internal intelligence units. This would have to be done as soon as possible after admission and for each and every prisoner. In view of the numbers this would be a massive task. They already had to go to the Social Work Department and the police and getting information from these agencies took many weeks. If they had to request information from these agencies for every prisoner, the agencies would grind to a halt. More staff would be required and there would be a vast amount of paperwork. A risk assessment group would have to be set up requiring probably another twenty or so new staff members. The prisoner would have to be given reasons for any decision and that might mean that the police might refuse to share information. It would not be a solution to do a risk assessment based on, for example, the security category of the prisoner or the type of offence committed. In some prisons low and high risk prisoners shared the same halls.

[126] Professor Coyle had indicated that the SPS had a good record of identifying potential and actual bullies and dealing with them, rather than by placing those who were liable to be bullied at a disadvantage. Mr Duffy agreed. Bullying was an ever present danger and it was critical in all aspects of management to take it into account. There was a lot of potential for bullying and the level depended on the opportunity. If things were devised in certain ways then different people would become bullies. It was something inherent in men living together in that sort of environment. The question of commercial exploitation also had to be borne in mind. Even if it were practical to carry out a risk assessment, the risks of bullying and commercial exploitation would remain. In paragraph 26 of his first affidavit Mr Duffy said that numbers were not checked as a matter of course. That was because the volume of admissions to the prison estate is so high. In Barlinnie for example there might be 180 prisoners admitted on a Monday night and each of them would be allowed twenty numbers. He also said that the numbers of most ordinary prisoners do not require to be checked. The checking which is done is intelligence led. The system was largely responsive and that acted as a deterrent to phone harassment. It was put to him that Professor Coyle had picked out that reference to ordinary prisoners and relied on it. In response he said that if there was evidence it could be checked. The distinction between ordinary and non-ordinary prisoners was similar to that between high security prisoners and others. Most ordinary prisoners had numbers but they knew they could be barred if there was cause to do it. Taking account of resources and experience, that system seemed to be effective in many cases but not all. A non-ordinary prisoner was one in respect of whom information had been received from the police or one who was on high security. That was a relatively small number of people. It might be that intelligence would reveal that only one number needed to be barred. He had not meant to say that there was no reason to check the vast majority of prisoners. In connection with bullying, of which he said he had experience, a passive population could turn very quickly if not managed properly and a lot of people could join in. He was asked what his belief was now in connection with the need for the full message. He said that the change in recent years had been a realisation about domestic issues. Probably six years ago he would have said the need for the message was in connection with harassment of witnesses and perhaps to stop domestic abuse but beneath the surface there was a lot more of the latter going on than they realised. The message had helped to manage it. He knew that from the intelligence staff who heard calls, from the fact that people were hanging up and from enquiries with outside agencies. He suspected that a lot of partners outside relied on the message and took control. There was a lot of abusive behaviour not seen previously. It was suggested to him that it might be argued that there was no reason for a comprehensive message which affected all prisoners if victims of domestic abuse could complain and have calls barred. To some extent this was dealt with in his first affidavit. The message gave people outside a choice and in some cases protection. Without the message abusive behaviour would have to be dealt with retrospectively. A number could be barred if there was information that there was a risk of domestic abuse but they did not have that knowledge. A prisoner might be in for a breach of the peace and the prison would not know that domestic abuse was involved. They would not necessarily know of bail conditions nor of the history of the relationship. He was aware that in England calls were logged and, on a sample basis, they were monitored. It appeared that there was a risk assessment process carried out in England and there was a body of prisoners on a call enabling system. Their notice put the responsibility on the prisoner to tell the recipient that the call might be recorded and monitored etcetera. Mr Duffy said that such a system was in place in Scotland before the Siemens system but the prisoners simply did not do it. It was artificial. The English system arrived at the same result, namely that the recipient was told that the message would be logged, might be recorded and might be monitored by prison staff. Once the message started it ran until someone put down the phone. If a prisoner wanted to conceal the fact that he was in jail it needed planning for him to do so. A prison staff phone could be used but they would have to persuade a member of staff that there was a valid reason. They could also arrange a time to telephone or call a mobile. It might be that they could phone a neighbour or a member of staff might phone the house and say that the call was coming through. If there was no planning involved it was possible that someone else could pick up the telephone but the examples he gave of pre-arrangement were not merely theoretical. He knew that they had occurred.

[127] Mr Duffy's affidavits covered a number of matters. He said that the PIN system was introduced in Kilmarnock in 1999 and the Kilmarnock experience seemed to suggest that it was an important means of protecting victims. A female voice was used in the SPS because it was thought to be warmer. When Kilmarnock Prison was first opened prisoners had to pay for the recorded message and that became an irritation to prisoners. Prisoners were not required to pay for it when it was introduced to the SPS. The SPS had a corporate approach. There were monthly governors' meetings and a consensus was taken at these meetings. The pre-recorded message was in the specification for the project when it was sent out to tender but SPS had to consider whether it was necessary. The governors were consulted and the consensus was that they should proceed with it. Most were supportive and everyone recognised that an SPS-wide approach on such an important matter would be required. In addition, the fact that someone was in prison was a matter of public knowledge.

[128] If a prisoner needed to use the prison phone he could ask the prison officer for use of the phone in special circumstances. That could happen, for example, if a prisoner was made aware of an extremely ill relative. Prisoners could often use the phone in the social work office if they were speaking to their social worker.

[129] Without the message and the facility to disallow a number the only way to deal with complaints would be to prevent use of the phone or to provide that an officer had to dial the number and supervise the call. The current system was less draconian. The system was constantly being monitored and it had been introduced in a sensible and responsible way.

[130] A lot of effort was put into ensuring that the message was designed to be a minimal intrusion. SPS had tried hard to get the balance right between giving recipients of phone calls consideration while taking account of the needs of prisoners. Most prisoners had been in prison before and the impact of the message on them was minimal. Prisoners did not raise it with him and nor did staff. It could be an irritation to a minority of prisoners because there was a slight delay when the call was being connected. Some people challenged it when it was introduced but now the inclusion of the message was accepted. There was potential for embarrassment but that would be minimal in comparison with having one's actions dissected in court and reported in the press and having one's photo appear in the paper. There were processes in place for writing to and visiting prisoners and sending in money and the use of the message was simply another part of prison life. Any detriment to the prisoner was outweighed by the protection afforded to the public. Telephones could be used to set up criminal acts and the inclusion of the message could prevent crime, in that people who might otherwise be pressurised into bringing things into prison had the choice whether to listen and be persuaded and drawn into crime or not. Prisoners could change their numbers on a weekly basis, although each establishment has its own rules. Without a recorded message there would be more instances of unacceptable calls. The system acted as a deterrent. Some new prisoners could be naive and might make unacceptable calls because they did not yet know any better. If there were no hung up calls it might suggest they had been very successful at eliminating unacceptable calls but the reality was that unacceptable calls were still made. There was no less intrusive way of managing calls. Shortening the message would be worse because it would be more sinister. If the message were disabled but the facility to disallow numbers were retained this would afford some protection for the public but not enough. It would be a retrospective way of addressing the problem as the unacceptable call would already have taken place. For someone to have their number disallowed they would have to write to the Governor and the reality was that people did not often do that. People might live in the same community as the prisoner calling them and they were unlikely to make a formal complaint for fear of repercussions. It was better and fairer that they had the choice which the message offered.

[131] A message which did not refer to the caller being in prison but which nonetheless referred to logging or monitoring, perhaps for security reasons, would be sinister. It was thought that this would particularly be the case for prisoners from minority communities. SPS considered that most people receiving such a message would be alarmed and would not want to proceed with it. It was also thought to be a safeguard that persons receiving messages, even when they wanted them, should be made aware that the message was recorded. That seemed to be in line with industry practice as it was commonplace for persons phoning many large organisations to be told that the message was being recorded for various reasons.

[132] In cross-examination he was asked about the mischief to be addressed by the reference to a prison in a recorded message. Broadly speaking the two areas were potential harassment of witnesses and domestic abuse but it was more complex than that. Linked to it was the question of giving people control. There were no accurate figures as to how often a prisoner might attempt to harass a witness. It was known to happen and there was some indication of it in the statistics but they did not know the scale of the problem. 7/22 related to calls which had been monitored for 28 months from September 2007 till December 2009 in respect of all Scottish prisons. There were sixteen threats to witnesses in those calls. There were hundreds of thousands of calls made every year. He was asked whether the concern was about witnesses being harassed and he said that the concern was about threats. In many cases it would be to witnesses but in many other cases it would be to different people outside. The data did not say whether the witness was the recipient of the call but Mr Duffy understood that the figures came from recorded messages which were listened to, so it might be known who the recipient was. Intelligence staff would listen to the call and might pass the information to the police but the nature of the concern would go into the prisoner's intelligence file. The information had been collected centrally and intelligence units given categories to fit the calls into but this did not give a lot of information. It was suggested that the calls had obviously been listened to and the message had not worked because the recipient had not hung up. Mr Duffy thought that that would read too much into the figures. It was difficult to know what they meant and how and why they were collected and he would be wary of making assumptions. It was, however, a reasonable assumption that if sixteen calls were threats to witnesses then somebody heard that.

[133] When the scheme was initiated the idea was to allow families to take control over calls, it being recognised that there would be an element of domestic abuse and violence. Over time it appeared to be more pronounced than earlier. There was a policy to encourage communication with families, however. The abuse had not been quantified. One could only talk to staff and ask how frequently it appeared to happen. He did not know how many of the figures in 7/22 related to domestic abuse. It might be included there or might not be. He was asked again whether, if an abusive phone call was heard, that that would show that the message had no effect because the recipient did not hang up. He agreed with that in a qualified sense. He might not mind an abusive call himself but other people might see it differently. The system was rolled out in connection with every prisoner, even those on remand. There was no information as to which prisoner should go into which category. It was also heard by recipients who might want to maintain contact. He believed that the English system involved a risk assessment but all he knew was from Professor Coyle's report. Paragraph 2.13 and 2.16 of 6/35, the PSO, were considered. There was no category A or potential category A or category E list in Scotland but there was a category of prisoners under high supervision. Potential escapees were on that. He was not aware of anything like a category of prisoners subject to harassment procedures in the SPS. If people were convicted of harassment offences that was easily ascertainable but he said that SPS would not readily know if someone was convicted of offences involving children. They would know that if the current offence involved that but not necessarily if it was included in a previous offence. Furthermore, 20% of prisoners were on remand. If a previous conviction specifically mentioned a particular Act of Parliament then that would assist. A court order restricting contact would not appear in the information. Mr Duffy did not say that these matters could not be discovered but there might be a lot of resource implications. He did think about a list like that when he saw Professor Coyle's report but it had not been considered officially. SPS did not choose to go down that route because the information was not reliable. It seemed clear cut when it was set out in writing but it was not. One had to decide at what level a risk assessment should be. He considered it. He did not think the English and Welsh system met the standard which would be appropriate. It was put to him that the English and Welsh Prison Service appeared satisfied with it but he said that he was thinking of the standard which was acceptable to the organisation in which he worked.

[134] As far as the number of calls allowed was concerned, he said that the figure of twenty seemed about right. He did not remember where it came from. Experience showed that it was about right and it intuitively seemed right. It was not the case that everyone had twenty numbers. Long term prisoners were probably in that category and short term prisoners had less. In Barlinnie, the average number for short term prisoners was eleven. He was asked about the figure of 10% for a hang-up rate and confirmed that sometimes prisoners repeatedly dialled the same number so the same number might be hung up a lot. That might affect the rate and it also assumed that it was the recipient that was hanging up. It might be for a variety of reasons. It was suggested that this could not be linked to the ethicacy of the message and he agreed that without further analysis one could not interpret the numbers further. It was suggested that the obvious reading of PAN in the 1999 Direction was that the numbers were actually approved by the governor but he said that was not obvious to him. It was not unusual for things in the SPS to be said to be approved, for example in relation to visitors and property in cells, but what it really meant was that the prisoner could have it on the basis that it would be taken from him if he abused it. Paragraph 6(4) of the 1998 Direction was read and it was put to him that it seemed to suggest that someone looked at the list to see if numbers ought to be approved. His position was that they would be approved unless there was reason not to. If there was evidence as to that then the number would not be approved. Approving every number in advance could not be done because of what was involved. He agreed that the English appeared to narrow the categories for which it needed to be done and said that no official consideration had been given to that here. If SPS had decided to accept the Commissioner's recommendation they would have had to consider what if anything to replace the message with but they had not got to that. The recommendation was not accepted. There had been no consideration given to an English type system before the message was put in place. SPS understood that England and Wales were going to go down the same route as the SPS so there had been no alternative debate, although, as it happened the English and Welsh did not go the same way.

[135] Mr Duffy was referred to his first affidavit at paragraph 13. In that paragraph he had indicated that he managed the "governors in charge meetings" and consulted with them about the introduction of the telephone system. The consensus was that they should proceed with a recorded message and in his view most were supportive. Everyone recognised that an SPS-wide approach would be required on such an important matter.

[136] It was suggested that some were opposed to the message but he did not remember that. Some governors were concerned as to whether the SPS could win a case like this. There was a lack of confidence because one or two cases had gone against the SPS. In 1999 it was not mandatory for a message to be attached but the process of discussing it with governors really overtook that. It was suggested to him that when the directions were thought of it was not considered by the drafters that the measure was necessary or there would have been no discretion. He could not say. It was left to operations how to deal with it and there was a general agreement that everyone had to operate the same. He could not think why the message only indicated that calls might be recorded where in fact they would be. Both the caller and the recipient heard the message before the caller could speak. Recipients knew that someone from prison was trying to contact them. The witness agreed that that might alarm some people and that it did not stop the prisoner calling the person. He could make the phone ring as often as he wanted if he had time. He did not agree with Professor Coyle that it was better to insure that the call was not made in the first place. He did not know about the various international systems but the checking systems abroad appeared to be more restrictive to the prisoner because of the limit on calls. There would be far fewer calls allowed in Scotland with that type of system, quite apart from the resource issues. It was suggested that the English restricted the numbers subject to the enabling system and he was asked what standard of service was acceptable to SPS. He did not wish to comment on that English system or say that it was flawed. If their risk assessment was as described, though, it would not be acceptable in Scotland. If others thought that he was setting the bar too high then he would respect that view. SPS did manage bullying where they could but his concern was about creating another source of bullying. It was better not to differentiate. The system was peppered with differentiation in, for example, the jobs which prisoners did and they were dealt with laudably by the system. One had to be careful, however, in adding to differentiation. Some differences did not matter. It was where it could be exploited that it mattered. They would not wish to increase the risk of level of violence. No research had been done to see if bullying had increased in England as a result of the system which they operated. A view was taken by him, and others with considerable experience in prison management, that bullying would increase. He did not need empirical evidence to support that position. He said that in the early stages the legal advice was that they were obliged to let people know about the recording etc and there was a message asking prisoners to let their families know about it. He understood that the legal advice changed but it was nonetheless best practice. He understood that a message had been withdrawn from use in England. It had been introduced at a particular prison and included a telephone number for the recipients to call. The prisoners had to pay for the message and they rejected it. It was suggested that it was felt to be of little operation value and he agreed that it might well have been but he did not know. He had not seen the letter, 6/37 of process, to the petitioner's solicitors, which described the message as being of little operational value. He wondered what was meant by that. He might argue that operational value was not important, the most important thing being what it did for people outside. He was asked again about his reference to most ordinary prisoners. He had indicated that they knew that SPS could bar them from using a phone or calling a number if there was abuse and that that seemed to be effective for most prisoners, like speed cameras were for drivers. Prisoners whom he would describe as non-ordinary were those who were subject to high security or those in respect of whom there was specific information from the police. There were probably only about ten prisoners in Scotland who were equivalent to the English category A. He did not have any numbers for prisoners who might fall into the group in respect of whom specific information was given but they were not vast. They were not into the thousands. It was very important that prisoners were encouraged to have contact with their families. It made them happy and improved conduct and morale. The hope of the SPS was that it could help to reduce re-offending. Research suggested that families were more effective in that regard than friends. It had a lot of value and he would not discourage contact. One of the priorities of SPS was the maintenance of contact with family and friends.

[137] In re-examination he said that complaints about the part of the message under consideration were almost unknown. Phone use was massive, to the extent of about 2 million calls a year. There was a danger that, when there was a range of systems which might operate, one could alight on one which might be thought to be a paradigm. Very careful thought would need to be given before they could reduce the numbers allowed from 20 to 4. That would be a very retrograde step and the planning would have to be very significant. It could result in an operational disturbance. The situation would be very tense and it would be a very foolish thing to do. There would also be concerns in terms of reducing the prisoner's contact with the outside. For example, some individuals had mobiles and it took about four numbers to contact one person sometimes. As far as bullying and his concern about discrimination were concerned, he had had 38 years in prisons all over the world and experience at every level running the SPS for the best part of 10 years. He knew what happened in prison. He would not do something which was a source of irritation to prisoners but sometimes the law changed. He was an official and had to take instructions as well as give advice. The SPS had given due consideration to the SPCC's recommendation and had not ignored them. If the Chief Executive considered a recommendation and did not accept it that was effectively the end of the matter although the Commissioner could put the matter in his annual report to Parliament or go straight to the minister, but that was very rare. He was referred to 7/3 of process, the letter to Mr Cameron in January 2005 and 7/4, the reply by Mr Cameron to the Commission, dated 24 March 2005. The first paragraph of the latter reads as follows:

"Thank you for your letter of 18 January enclosing two formal recommendations. I note that you have had lengthy discussions with Stephen Sadler on the subject of the recommendations and I have seen your correspondence on the issues raised. We have considered each recommendation carefully. As you know I have asked Stephen to meet you when you identify emerging issues so that these can be discussed in some detail before you submit formal recommendations."

[138] This indicated that there was careful consideration of the recommendations. Mr Sadler was head of legal policy.

[139] Mr Duffy was asked to read the rest of the letter to see if he agreed with it.

[140] In relation to the pre-recorded message it is in the following terms:

"I know that you have concerns about the use of the pre-recorded message which precedes any call and advises recipients that the call is coming from a prison. You have received complaints from a number of prisoners and you referred to a sample of these in your letter. As a result, you suggest that the message is neither necessary nor legal. We disagree on both accounts. We have considered the use of the pre-recorded message again in the light of your recommendation but have decided to retain it.

We believe that there is a real danger to be combated here and that the message provides an additional safeguard for those receiving calls from prisoners. Having a warning message allows the recipient to determinate the call immediately (and, if they suspect that they know who made it, to contact SPS to ask that the prisoner be prevented from making further calls to that number). Our original desire to introduce a message into the new telephone system was based on its security and operational value. Having determined that there was an operational need for the message we obviously considered the legal issues involved before introducing it. We take the view that it is legal.

While, as you say, a prisoner may submit up to 20 telephone numbers for inclusion on his or her approved list, the owners of these numbers cannot always be contacted in advance to seek their agreement to be on the list. The telephone message therefore provides a backup to the approved number system in giving the recipients the opportunity to stop the call. You suggest that since calls are already monitored and recorded it would be easy for SPS to listen in to insure that no recipient of a call was being victimised by threatening or abusive calls. While all calls are recorded, not all calls are listened to at the time of the call. Only a small percentage of calls are monitored in this way. It would not be practical (to) listen in to all calls.

Nor, given the general freedom of prisoners to make calls, would it be practicable to use the message in a selective way. This precludes, for example, only using the message when the recipient of the call might object to the call, or alternatively not to use it when the prisoner is calling certain numbers. In order to achieve the desired purpose it must be used before all calls from all prisoners. Otherwise, recipients cannot be assured of knowing which calls are from a prisoner. It would also be technically difficult to use the message selectively, for example by switching it off for certain calls by certain prisoners.

You will be aware that we have recently altered the message. We have removed the name of the particular prison from which the call is made. This limits the amount of information provided so as not reveal details about the prisoner, for example, that a caller from Peterhead is likely to be a sex offender.

You say that you have no evidence to suggest that any prisoner would risk losing access to the telephone by making abusive calls and that in any case the recipients of the call could contact SPS to complain. That is like saying that a citizen would not risk being imprisoned by acting unlawfully. We do not find that argument compelling. Prisoners do not always act in a rational manner. This may be particularly true of a prisoner likely to make abusive calls. And the recipient of an abusive call may not wish to complain through fear of the caller. The new system was put in place, in part, to remove this burden from the potential victim."

Mr Duffy said that that letter was on the right lines. He was then referred to the affidavit of Stephen Michael Sadler, dated 23 April 2008. According to that affidavit, the correspondence just referred to was the last involvement SPS had with the Commissioner in relation to this complaint.

[141] There were three elements to the message. The first was that the call originated from a Scottish Prison, the second was that it might be logged etc and the third was that the recipient was given the opportunity to hang up. All three elements had to be taken together. A message was required to let people know that the call was being recorded etc and that it was coming from a prison. If the part about the prison was deleted Mr Duffy would put the telephone down if he received the call himself. He would want to know why it was being recorded. People in the present culture were paranoid about being recorded. Telling the recipient that the call came from prison also helped to protect victims. He was referred to the English message from Full Sutton Prison, referred to in 6/37. The message which was quoted in that letter was said to take 23 seconds but something must have been missed out because the message quoted would not take that long. Any comparison with what was started and abandoned in England needed a fuller understanding of what they were trying to do. It had been suggested that SPS could routinely assess the risk of abuse by telephone, for example on the part of sex offenders if they went to Peterhead. Mr Duffy said that information was not always full. A breach for peace might be related to domestic abuse but they would not in many cases not know that. Barlinnie was a busy place on Mondays. A lot of work was done but it was concentrated on assessing whether or not a prisoner was at risk of committing suicide. If a warrant indicated that a prisoner had been convicted of assault, SPS would not know whether that involved his wife or a child or another man. It would not be enough simply to look at previous convictions and the current conviction. Most prisoners were on summary complaint and SPS did not receive a copy of the complaint. They might get a report after conviction but there was a time lag. They would receive a copy of the indictment but that would not relate to previous offences.

[142] The error in the recorded message was simply a question of poor drafting.

[143] The next witness for the respondents was Mrs Rona Sweeney, the Director of Prisons for the Scottish Prison Service.

[144] She joined SPS in July 1987 as Assistant Governor (training) at Perth Prison, in July 1988 she transferred to Shotts as grade 5 Governor and in October 1991 she went on secondment to the Northern Irish Prison Service working at HMP Maghaberry. She became Deputy Head of training at the SPS College in October 1992 and in March 1995 went to the Peterhead Unit as Governor in charge. In October 1997 she went to Longriggend and in April 2000 she returned to the SPS College. She joined Barlinnie as Deputy Governor in May 2001 and in August 2002 went to Headquarters, where she became Deputy Director of Operations. From July 2003 she was on secondment to the Scottish Executive's Reducing Re‑offending division and in April 2005 she became of Head of Intervention and Integration within the Rehabilitation and Care Directorate at SPS Headquarters. This involved ensuring that SPS could meet their obligations under the Management of Offenders Act 2005 and she had policy responsibility for areas such as social care, social work, employability, addictions, psychology and so on. She became Governor of Shotts in October 2006 and Deputy Director of Prisons in December 2007. She achieved her current position in December 2008. In that role she had responsibility for service delivery in public sector prisons and for policy areas, including security and order.

[145] She had had extensive contact with the prison population.

[146] She was on maternity leave when the phone system was introduced in 2003 and was not aware for the reasons for its introduction at that time.

[147] All the above information comes from her affidavit dated 8 January 2009.

[148] It goes on to indicate that she was the Deputy Director when the 2008 Direction was put in place. The main reasons for retaining the message were to reduce the risks of intimidation to witnesses and victims, to support maintenance of prison order, to warn recipients, in the interests of fairness, that their call was being logged and recorded and might be monitored and to discourage ongoing criminal activity.

[149] The retention of the message provided the recipient with the option to decline a call without having to speak to the caller. It prevented any potential victim and/or witness from harassment through the telephone system. The prisoner's Article 8 rights had to be considered alongside the recipient rights and it was thought that the telephone arrangements struck a fair balance.

[150] The message acted as a deterrent, preventing prisoners from harassing victims and witnesses. Reference is made in the affidavit to 7/22 of process and the figures therein. If the message did not exist then SPS were of the view that the figures would be higher.

[151] The message reduced the risks to the internal control in the prison and the risk that prisoners would continue to engage in criminal activity while incarcerated. Its removal would threaten the good order of the prison.

[152] The view of SPS was that the message should continue to apply to all prisoners' calls with the exception of exempted calls. There was doubt about the practicability of an alternative system based on a risk assessment and vulnerable prisoners could be bullied or other prisoners could manipulate the system for personal game. That would disrupt the good order of the prison.

[153] Without the first part of the message, the second part of the message would alarm recipients. They would not know by whom or why the call was being logged, recorded and/or monitored.

[154] The affidavit went on to explain the current phone system. The numbers were listed but not checked routinely. The regularity of changes to the numbers and the amount of numbers which could be changed could vary between establishments. Prisoners were unlimited in the amount of calls they could make provided they had credit. In Glenochil and Shotts, credit could be purchased weekly from wages earned plus up to £15 of personal money.

[155] In 2008 there were 39,448 admissions to the SPS Estate. It would be a significant burden in terms of resources if each prisoner's 20 numbers had to be checked. The only checking which took place was to ensure that the numbers were not prohibited, such as 0800 numbers and 999, numbers which had been barred at the request of the recipient or "platform" numbers which were used so that calls could be automatically forwarded to other numbers. A new phone system to be installed by the end of March 2010 would have a feature which automatically identified such prohibited numbers. If abusive calls were reported the prisoner could be monitored and information might be passed to the police. Staff would be expected to speak to the prisoner to warn him against making such calls. Calls were monitored either on receipt of intelligence or through a random sample. Over a 26 month period from 28 September 2007 to 17 November 2009 4,474 intelligence reports were generated with the PIN phone system as the intelligence source. If a prisoner was embarrassed about the message he could make arrangements that only certain people would answer the call. From Mrs Sweeney's experience, prisoners were not generally embarrassed by it. Imprisonment was a matter of public record. Since 2004 there had been nine complaints logged on the system about the message. Prisoners were seldom shy and would say if they were unhappy about something. No other governor had ever raised any complaints about the message with Mrs Sweeney. In her experience it was accepted as part of the culture of prison life.

[156] It would not be desirable to have it only applied to certain prisoners because of the question of bullying and/or exploitation. A risk assessment would be required if the message was applied differentially. The affidavit indicated that she thought that the risk assessment process would be similar to that brought in, in relation to transfer to the open estate. A new risk assessment process was introduced in the aftermath of a high profile case where a prisoner from the open estate committed a serious offence. An effective risk assessment regime was multi-disciplinary and required both resources and time. The SPS did not have all the information needed and sought input from the police and community based Social Work Department. Much of prison generated information would relate to risks to the good order to the establishment and would not readily lend itself to the level of risk posed to the community and victims outside. It was only on receipt of information from community partners that SPS found out that there was an issue with domestic abuse or child protection. Even a much reduced version of the risk assessment for the open estate for every person who wished access to the telephone would be resource-intensive and might be prohibitive in terms of cost, not only to the SPS but also to the community partners. If the message were removed there would be an increased risk of harassment to victims and witnesses, an increase in prisoners carrying on with criminal activity while in prison and a disruption to the maintenance of good prison order. It was at least good practice to advise that the call was being recorded and also to advise the name of the organisation recording the call. She made a number of comments in the affidavit about Professor Coyle's reports. I need not deal with them all. She accepted that the message put the onus on the recipient of the call to hang up but this was better than victims or witnesses having to hear the prisoner's voice and then hang up after contact was made. It was not possible to quantify the deterrent effect but she believed that the message was a deterrent.

[157] In her oral evidence she adopted her affidavit. She said that prisons had to be safe and secure. She confirmed that in her opinion the message was a deterrent. Some prisoners wanted to continue their activities towards the community or bring drugs into jail and the message had some impact on the likelihood that they would continue. The SPS did not intend covert surveillance. Sometimes in other scenarios they would do. Often an officer would notice that a prisoner was keen to get on the phone and would see other prisoners flock around him. The officer would ask for the call to be checked to see if that related to drugs to be brought in. In relation to the 4,474 intelligence reports which she mentioned, she said that about 1500 of them were in connection with bringing drugs into jails and the others were related to threats of violence and weapons. Around 40% related to criminal activity. The other 60% related, for example, to bullying and questions of prisoners transferring from one establishment to another. Prisoners would be interested if other prisoners went to an area of the prison where they could access the community so that there might be vulnerable to pressure to bring in drugs. Similarly, if a prisoner was allowed home leave there could be that pressure and other prisoners would try to arrange to get drugs to the place where the prisoner was visiting. In short, 40% of the reports related to direct criminal activity and 60% included a variety of information that might be relevant and might give an opportunity for bringing in drugs and bullying. She was asked if there was any intention to send a message to those outside prison which would deter them from criminal activity. She said that the fact that they had the message meant, as she understood it, that the police could use the information in a recorded message in court. She thought that people who received a call had an expectation of privacy and it was right that they were told that was not the case.

[158] It was suggested that if there were over 4,000 intelligence reports that meant that the deterrence was not working. She said that it worked for some of the time. One could not measure it. Some people forgot about the deterrent and others took the risk that their activities would not be picked up. She was concerned that without the message the information would be of more limited use and might be inadmissible as evidence. It would be covert and proper procedures would not have been gone through.

[159] She was referred to the other statistics in 7/22 about the 220 intelligence reports of threats between September 2007 and December 2009. She said that these were a subset of the 4,474 reports and related more specific incidents. They could relate to a caller saying what he would do or reporting what another prisoner would do. Any threat to a prisoner from wherever it came would be included. There were sixteen threats to witnesses recorded, ten to witnesses and nine to victims. Monitoring was random unless there was specific intelligence. It could also be at the request of the police, which of course was also intelligence led. It was put to her that it could be said that the fact that there were these statistics showed that the system did not work because victims and others were being threatened. She said that the presence of the message gave the recipient a chance to hang up before they were threatened and it was better than a threatening voice telling them not to hang up. Although there was no comparison group, she believed that the figures for abuse would be higher if there was no message. The hang-up rates were higher than for other Government departments. Furthermore, the recipient knew that the call would be recorded so it was just not their word against the caller as to what took place. That meant they might be more encouraged to tell the police what happened. Some people might want the message to be recorded. In short, she believed that the incidence of threats and illegality would be greater but for the message. She referred to the hang-up rates which I have already mentioned but agreed that the statistics did not make clear if it was the prisoner or the recipient who hung up.

[160] In paragraph 20 of her affidavit she referred to one of the main reasons for retaining the message as being to support the maintenance of prison order. She said that the recording and the ability to listen to the call was important but the message also had a deterrent impact.

[161] As far as risk assessments were concerned, in order to do them properly they would have to be done in every case. Even if a prisoner had been in prison before his circumstances might have changed. It might be less elaborate than would be required for the open state but information would still be needed from other organisations. It was not a statutory duty of the social work department to provide such information at the moment so that would be an additional burden for them. SPS already did assessments on every prisoner and potentially there would be a large pool of information but it did not cover all the information which would be needed for this. The assessments carried out already related to their security risk, the risk to good order in prison, the risk of self harm and their medical conditions. In most cases that information was already in the prison or they had information which allowed them to asses it. Nurses were trained to ask certain questions about psychological health for example. The risk assessment which would be required would relate to people outside whom the Prison Service did not know. The prison was usually provided with previous convictions and there might be a trial judge's report on indictment but that came later. There might or might not be a Social Enquiry Report depending upon whether one was requested and completed and if so whether it was sent to the prison. It was an ongoing concern because a lot of people arrived and the service knew nothing about them. She was referred to that part of her affidavit dealing with the number of complaints from prisoners and confirmed that there had only been nine logged on the IT system since 2004. Prisoners had complained about the cost of calls but not the message. It was accepted as part of the culture of prison life like cell security checks, searches and metal detectors.

[162] As far as bullying and exploitation was concerned, she said that in her experience prisoners often exploited any vulnerable or naïve prisoner who had something which they wanted and did not have themselves. For example, people who were given supervised methadone were often pressurised to regurgitate it and pass it on. SPS tried to cater for individual needs to try to stop re-offending but it often made sense to treat prisoners equally so as to limit avenues for exploitation. There was no code of honour in the prison. She told of one prisoner who befriended another prisoner and through him his partner. Through his partner he obtained information about his own partner whom he had abused and found out what car she drove, where she worked and her colour of hair. There were major step points in the status of prisoner as they moved towards release but the basic threshold was the same. In Shotts prisoners being prepared for release moved to an enhanced wing and were given escorted visits. For some time the regime ran on the basis of "carrots and sticks", involving some being allowed more property in their cell or extra visits but it did not work out. It was not underpinned by enough rigour and it was vulnerable to prisoners saying that they were downgraded because an officer did not like them. She had no difficulty with what was attributed to Mr Duffy in paragraph 11 of Professor Coyle's second report. A risk assessment group would need information from other agencies. Paragraph 12 of Professor Coyle's second report reads as follows:

"I must confess that I find this line of argument rather surprising. (That is the argument attributed to Mr Duffy in paragraph 11). The SPS (Scottish Prison Service) has prided itself, quite rightly, for many years on its ability to deal with the prisoners in its care as individuals rather than as a homogenous, undifferentiated group. It continuously makes assessments about prisoners in respect of a wide variety of issues, such as the prison to which they should be allocated; the hall or unit in which they should be held; individual sentence plans which cover the type of work they will do, whether they need education, various programmes to which they should have access; their health and social requirements; and many more matters. This information will already be held by the prison and could form a useful basis for any decision about the need for a pre-recorded message to precede telephone calls made by certain categories of prisoner."

[163] She said that SPS prided themselves in this regard. It was suggested that since they were able to deal with prisoners as individuals there was no justification for a blanket approach but she said that it treated them as individuals in connection with, for example, risks to security or order where SPS had the information. In relation to reducing re-offending, they could work with psychologists and social workers and assess that. There was no scope for bullying in that regard. Prisoners did not bully each other to get onto a violence reduction programme. There were some problems with medication. Some had it supervised daily and some were given a week's worth which made them vulnerable. There were, however, random checks so that the prisoners could show them the medicine. They were given safes for it and if it was abused they would go onto a daily medication regime. If there was a selective system in relation to the phone she would be very concerned about it. While they made assessments about prisoners in respect of a wide variety of issues it did not cover information about witnesses or victims, child protection or domestic abuse issues. If someone was charged with or convicted of breach of the peace and it involved domestic abuse SPS would not know that. The cases where the police got involved were usually high profile ones where they might want to listen to telephone communications.

[164] In cross-examination she said that the risks of intimidation to witnesses to which she referred in her affidavit meant witnesses in the trial of a particular prisoner. "Victims" covered a range of victims both in a trial and, for example, partner victims of domestic abuse. SPS would be aware of prisoners convicted of child abuse but would not be aware of questions of supervised contact, for example. They were duty bound in terms of the Management of Offenders Act to co-operate with other agencies in reducing offending. There were concordats in connection with exchanging information with the police and others. She was asked whether SPS were concerned with protection of victims etc by controlling phone calls. She said that they were trying to deter offending by recording calls and by informing callers and recipients that that was happening. She wanted the recipients to know that they should not assume that their conversations were private. She was asked where any power came from to be concerned with that sort of issue and she said that statutory power was not needed for that. She was also asked where the power was to obtain information on victims etc and she said she was concerned about that because Parliament had not given it. If it was needed for parole decisions or allowing prisoners access to the community they could get the information. They might be able to get the information for a risk assessment in connection with use of the telephone but there would be questions of resources involved. She was asked whether there was any obligation on other agencies to give the information and she said that there was no statutory basis for it. She knew that it would be a concern for Social Work Departments and their resources if they asked for more information. It was suggested that there was no power to concern themselves with people outside and she referred to the Management of Offenders Act giving them a duty to co-operate with other agencies. She agreed that protecting people outside was a different area from dealing with prisoners. She was asked whether the message prevented harassment. She said that it did not prevent but she believed it deterred and had the potential to prevent harassment because the recipient could hang up. She agreed that the ability to phone and have the message played was itself a form of harassment and that it was better if it did not happen at all but it was less menacing to have the message than have the harasser speaking. She agreed also that it would be better to stop the call in the first place but there were difficulties about that. She agreed that there was no attempt to discriminate and assess individual prisoners. There had been some discussions about how prisoners could be categorised but they did not have the information to do it. The possibility had been thought about, however. She agreed that the fact that there were 220 intelligent reports of threats showed that the message did not always work. SPS did not know how many threats were made before the recording started. Her opinion however, was it was a deterrent and she thought that knowing of the risk might impact on prisoner's behaviour like speed limits on drivers, as Mr Duffy had said. Prisoners were aware of the fact of recording through the notices. It could not be assumed that all prisoners could read. The system would tell them about it when they were inducted but there was a lot to absorb at that time and some did not remember what they were told. She did not why hang-up rates were higher in Cornton Vale than Glenochil. She did not know whether victims of domestic abuse were more likely to be called from a male prison. She was asked what effect the message would have had on the example of a prisoner befriending another prisoner and obtaining information about his partner through that other prisoner's partner. She said that she was simply using that example to illustrate the extremes to which prisoners would go to exploit each other. She was not sure what difference the message would have made. If the message was covertly recorded the police would have had to use powers under RIPA although she conceded that the person making the call would have known about the recording because of the notice. She was not aware of many complaints to the Commissioner shortly after the introduction of the message. She was aware, though, that he made a recommendation which was not followed up. She was asked if prisoners could do anything else apart from raising actions like this and she said that she would expect them to complain frequently with persistence. They could write to their MPs and MSPs if they were not happy. It was suggested that they might just get on with it and she said if that is what they had chosen to do that indicated the importance of it to them. They would protest over other things. She said that a risk assessment would not require to be at the same level as one for transfer to the open estate but the process would be similar, involving speaking to other agencies to obtain information. Apparently the agencies would be willing to pass on the information depending on their resources.

[165] The remainder of the evidence led for the respondents was contained in affidavits which were agreed as being the whole evidence of the witnesses who gave them.

[166] Stephen Michael Sadler is Head of Legal Policy for the Scottish Prison Service. He explained that if the Commissioner felt that he was reaching the stage of making a formal recommendation then he approached Mr Sadler. He would make a recommendation if he was not able to resolve a complaint at a local level. The matter would be discussed between them and in some cases Mr Sadler might approach the Chief Executive to suggest that their stance be altered. The Commissioner's approach to Mr Sadler was a final step in the process before he framed an official recommendation. He had not made that many formal recommendations in recent years. Most issues were capable of resolution locally. In August or September 2004 he was contacted by the Commissioner, who was considering making recommendations in a number of areas and Mr Sadler attended a meeting with him. Before doing so he considered the legal issues relating to the use of the recorded message and expressed the position of SPS that it was justified under Article 8(2) of the Convention. The Commissioner wrote on 18 January 2005, as has been seen in production 7/3. The Chief Executive wrote to the Commissioner reiterating the position of SPS (see 7/4 of process).

[167] There was nothing in Mr Sadler's file to suggest that there was any other correspondence between SPS and the Commissioner. There may have been telephone discussions about it but he had not retained any notes.

[168] Thomas Graham Costello is a Prison Officer at Shotts. He had known the petitioner for some time, having met him a number of years ago when he was serving an earlier sentence at Shotts. He had been the petitioner's Personal Officer since 18 November 2007 and had day to day contact with him. He saw the petitioner when he came to him needing advice or needing something to be done. That did not occur very often. The petitioner seemed to be an independent person who just got on with sentence. He was not aware of his having made any complaints.

[169] The petitioner would only ever make telephone calls from the PIN phone. He did not have any other means of making calls and had not to the witness's recollection expressed any concerns with regards to contacting his children and the recorded message.

[170] On 5 September 2008 at an integrated case management interview the petitioner advised the witness that he took one visit each month with his sister and/or friends, that he sent and received regular mail and that he made good use of the hall phones. At the same interview he advised the witness that before this sentence he lived with his wife and two children but that was no longer possible as he and his wife had since divorced and no longer had any contact. He did, though, say that he had contact with his children through his family, mainly through his mother, either by letter or telephone.

[171] At the ICM interview in August 2009 the petitioner said that there had been no change in his circumstances. The petitioner's 14 year old son was on his list of visitors but the witness did not know if the boy had ever visited the petitioner.

[172] The witness was aware of one other prisoner at Shotts making a complaint about the recorded message.

[173] Robert McAinsh gave an affidavit dated 21 April 2008. In that he said that he was a Hall Manager at Glenochil. He met the petitioner at Glenochil and had known him throughout most of his career with the Scottish Prison Service. He had assisted him in the past on various occasions, for example by allowing him time off work during his appeal against sentence and conviction.

[174] He did not recall the petitioner making any complaint about the telephone system at the time of the death of a friend in 2005. Following his father's death in 2006 he was allowed to make some calls from the hall office as he had no money on his phone card. He made around half a dozen calls from the hall office to the knowledge of the witness. This was allowed on compassionate grounds.

[175] He recalled discussing the phone system with the petitioner shortly after he was transferred, at his own request, to Shotts in 2007. He said that he had spoken to the Hall Supervisor about the matter and referred to his court proceedings. His tone seemed flippant to the witness. He seemed to be looking forward to the cover she expected that his case would receive in the Press. The conversation was of a general nature and he had not understood the petitioner to be making a complaint.

[176] The petitioner mentioned on a few occasions that he was embarrassed to use the phones because of the message and that he felt that the message was not right and was contrary to his human rights. These comments were made in passing and this was the only evidence of the petitioner's embarrassment or discomfort about using the phones.

[177] The witness was aware that the petitioner was paying the bill for a phone line through which he could call his children. That line was separate from that of his ex‑wife's home phone line. Bills were sent to the petitioner and he was allowed to pay those from his wages.

[178] The petitioner did not tell the witness that he had had any difficulty contacting his children because of the message. He understood that the petitioner had difficulty remaining in contact with his children because of disagreements with his ex-wife. (The witness was not sure if the petitioner and his ex-wife were in fact married). In any event the petitioner told him that his ex-wife or ex-partner had disconnected the separate phone line or had had the service discontinued after a falling out between them. These were the only factors of which the witness was aware which created a difficulty for the petitioner in contacting his children by phone from Glenochil.

[179] No other prisoners had ever mentioned to the witness that they were embarrassed or uncomfortable about using the prison phones on account of the message.

[180] There was an affidavit, dated 24 April 2008, from Mhairi MacFarlane McGowan. She was the co-ordinator of ASSIST and had been for three years. Before joining that organisation she worked for ten years as a support and development worker with Greater Easterhouse Women's Aid in Glasgow. Her professional qualification was a B.Sc. (hons). Through her work with ASSIST she was aware of serving prisoners making unwanted telephone calls from prison to the victims of their domestic abuse and violence. In some but not all of these cases the abuser had been imprisoned as a direct result of the domestic abuse. Her awareness of such calls was restricted to cases concerning domestic abuse and violence, due to the nature of the organisation. ASSIST talked to different women receiving such telephone calls approximately three times a month. She had no knowledge of the situation before the introduction of the message. ASSIST had been established in 2004 and she did not deal with this type of case when she worked with Women's Aid.

[181] Such calls were made by prisoners trying to put pressure upon their partner or former partners. That pressure might be to withdraw a complaint, not to turn up at court or go to visit the perpetrator in prison. The latter might be a tactic since prison visits could be presented to the court as evidence of a partner's support.

[182] Women had stated to the witness that the message provided them with an opportunity to decide how to deal with such unwanted calls. Typically they would only know one person in prison and the message allowed them to decide whether to hang up without taking the call or at least collect their thoughts.

[183] ASSIST was aware of the facility whereby a number could be barred from receiving calls from a prison. At least twice month they were involved in discussions between women and prisons about making use of the facility. Most women ASSIST spoke to were not aware of the facility beforehand and women found it very useful. The withdrawal of that facility would be disastrous.

[184] Harassment of women often took place by phone. At least one third of women experienced ongoing harassment after a relationship had ended. When an attacker was in prison the woman felt safe. For many this was a temporary respite from an ongoing campaign of harassment and in such circumstances receiving an unexpected call from the attacker could severely re-traumatise a woman or, if they picked up the phone first, her children. A common feature of stalking was that the victim would be called at a similar time every night. If this was allowed to continue from prison it did not matter, from the victim's perspective that the perpetrator was in prison.

[185] Were the pre-recorded message removed the witness would anticipate an increase in the number of calls received by ASSIST complaining about abusive calls from prisoners. The message allowed women to know who the call was from and gave them a brief window to decide whether they wanted to receive it. If the call went straight through the woman might feel trapped and unable to hang up. If she hung up before hearing the prisoner she could blame the hang up on the technology or some other factor. This made a huge difference to women living with domestic abuse who were often not keen to seem pro-active in preventing contact. For instance, in one case ASSIST helped a woman by phoning the police on her behalf to report her husband's abusive behaviour. The remove between her contacting ASSIST and their contacting the police was psychologically crucial to her.

[186] A woman might not want to use the call barring system. If it were possible for the prisoner to find out that she had requested that her number be barred that could place her in real danger. Even if that were not possible, some women might not want or be able to take that step given their emotional state. Just hanging up the phone was a big step for them to take. It was not possible to generalise about how women reacted to domestic abuse and call barring might suit some. It was important to provide a range of methods of protecting women and the witness considered it vital that the recorded message system was retained for those reasons.

[187] The second part of the message stating that the call might be recorded did not alone make it sufficiently clear that the call originated from a prison. The value of the system depended upon women knowing that that was the case.

[188] A woman could hang up more readily before hearing her attacker's voice. It might be more difficult for her to hang up when the prisoner knew that she could hear him. The message gave women control in a situation in which they previously had none.

[189] There was an affidavit, also dated 22 April 2008, from Victoria Louise Kerr, who was a social worker with the Domestic Violence Probation Project under the auspices of City of Edinburgh Council. She had been employed in that capacity for 5 years and for the last year and a half had been acting manager. Before joining the Project she worked for 8 years in the Criminal Justice field and during that time she worked in the diversion from prosecution scheme, the Edinburgh prisons social work Team and Muirhouse social work team. She held a diploma in Social Work.

[190] In the past two or three years she had been aware of nineteen women who wanted no contact with their partner, or former partner, in prison or who wanted to be able to screen their calls so that only their children could talk to the prisoner. In all of the nineteen cases the woman was the victim of the violent offence resulting in the prisoner's incarceration.

[191] Before the introduction of the message she knew of one case in which a prisoner actively harassed a woman with the intention of intimidating her out of appearing as a witness. The prison ultimately removed his access to the phone altogether and prevented him from writing to the witness.

[192] Not all prisoners tried to contact their victims. Of the nineteen cases she mentioned where women were clear that they did not want contact, or only limited contact, only three had encountered the message. In those cases they found it very useful. It enabled them to hang up before speaking to their attacker or allowed them to pass the phone onto their child or other family member.

[193] The Project had previously been unaware of the possibility of numbers being barred and had had no experience of that system being used. The witness could appreciate that it might be useful but because prisoners were moved around different prisons so often she could envisage difficulties in having the numbers barred from each establishment. Such a system put the onus on the victim to protect herself rather than the system protecting her automatically. Barring numbers would only offer effective protection if offered in tandem, not instead of, the message system.

[194] Those who had been unexpectedly contacted from prison had been re‑traumatised by the experience. It re-established their sense of fear connected with the offence. The call itself need not be aggressive in nature to be a reminder of the violence. For those who had suffered violence, the fear of it could be permanent and unwanted contact could prevent the healing of trauma and diminished the sense of freedom and the safety of the victim.

[195] The witness knew of four cases in the past two or three years, two of them in the preceding year, in which women had been badly physically affected by unwanted contact from prison. The calls left them feeling unsafe in their own homes and unable to go about their business. That fear manifested itself inter alia in anxiety and depression.

[196] Removal of the message would remove the sense of, and actual, safety of many women. They would be left accessible to prisoners who would threaten or harm them or their children.

[197] Part of the work of the Project was to empower women to make choices which made them safer. Contact with offenders could result in their making choices affected by fear which might prevent them from taking action they believed would antagonise their abuser. It diminished the ability of victim support organisations to help women if such organisations and statutory services such as the Project could not give women assurances of protection from unwanted contact. Effectively they would not believe that they could help to keep them safe. Organisations like the Project depended upon building trust with the victims of domestic violence and encouraging them to believe that they were as powerful as their tormentor. That trust would be undermined if they could be contacted by their tormentor. For those reasons ASSIST had strongly urged the retention of the message.

[198] Lastly, there was an affidavit from William G Connolly dated 11 January 2010. Mr Connolly described himself as Governor 1, Director of Operations in the Irish Prison Service.

[199] He confirmed that in Ireland prisoners could nominate a maximum of four numbers. Most governors allowed changes on a monthly basis but that could vary.

[200] There was a distinction in the Prison Rules 2007 between the calls allowed for remand prisoners and those allowed for sentenced prisoners. More extensive family contact for the former, both through phone calls and visits, was allowed.

According to the rules, a convicted prisoner who was not less than 18 years of age was entitled to make not less than one telephone call per week to a member of his or her family or to a friend.

[201] A convicted prisoner who was less than 18 years of age was entitled to make not less than two such telephone calls per week.

[202] A non-convicted prisoner was entitled to make not less than five such telephone calls per week and as many telephone calls as were reasonably necessary to enable him or her to manage her property or business affairs, subject to such reasonable limitations as the governor might impose in the interests of the effective management of the prison and the maintenance of good order and safe and secure custody.

[203] In practice all prisoners were allowed one call per day, seven days per week. The daily phone call could last for a maximum of 6 minutes and that limit was enforced by the system. Additional calls might be facilitated at the governor's discretion.

[204] There was a facility to monitor and record calls. All calls were monitored, with the exception of calls to lawyers and the Samaritans.

[205] When the prisoner submitted a number for approval, the prison officer dialled the number, explained the nature of the call, asked the recipient to confirm that he or she was willing to take the call and explained that the call would be monitored. For all subsequent calls by the prisoner to that number the officer had no involvement. When the prisoner signed the application form to access the phone system he confirmed that he had read the terms and conditions which informed him that all calls might be monitored and recorded.

[206] In areas where the prison telephone system was not in place, a prison officer dialled the number on behalf of the prisoner, explained the nature of the call and asked the recipient to confirm his or her willingness to take the call. The prison officer stayed with the prisoner for the duration of the call unless it was to lawyers or the Samaritans.

[207] At the end of 2009 the operational staff to prisoner ratio was 0.82 and the prisoner to staff ratio was 1.21.

[208] The system was due to be replaced in 2010 with a newer and more robust system but there were no plans to change the frequency of the calls.

Submissions for the petitioner

[209] Mr Burns reminded me that he sought declarator in terms of Statement 4 of the petition. If I were not with him on that he sought declarator at common law that paragraph 7(3) of the 2008 Direction was ultra vires.

[210] He invited me to uphold the first and third pleas-in-law for the petitioner and repel those of the respondents.

[211] Whether flowing from the 1999 or 2008 Direction the policy was a blanket one applying to every call from every prisoner from every prison in Scotland. The 2008 Direction imposed a requirement that the message be inserted without the possibility of any exceptions and that was more difficult for the respondents to justify than the 1999 Direction which left it to the discretion of the governor of a particular prison.

[212] He reminded me of the factual background comprising the petitioner's history of incarceration and the introduction of the phone system. The petitioner made a formal complaint in May 2004 as could be seen in production 6/3. The answer to his complaint was that it was national policy to insert the message and he ultimately went to the Commissioner. As a result of the Commissioner's recommendation in April 2004 the reference to a specific prison was deleted.

[213] The petitioner and many others continued to complain and the Commissioner in January 2005 recommended that the respondents delete the part of the message now complained of. See 7/3. That recommendation was not accepted.

[214] In September 2006, after a prolonged application for Legal Aid starting in 2004, this petition was lodged.

[215] Mr Duffy and Mrs Sweeney had drawn attention to the lack of complaints from prisoners in the period from some time shortly after the message's introduction but 7/3 made it clear that many complaints were received from prisoners about the message up to that time. Having regard to the respondent's attitude to such complaints, I was invited to accept Professor Coyle's evidence that prisoners would not complain about matters which they believed they could not change. Lack of continuing complaints did not mean that prisoners were any more content with the message than they were when it was introduced. In any event Mr Potter maintained his complaint. He found it embarrassing and that it restricted the calls he could make.

[216] The Lord Ordinary had examined whether the 1999 Direction was in accordance with the law and proceeded on the concession that there was interference with the petitioner's rights under Article 8.1. He found that Section 39 of the Prisons (Scotland) Act 1989 and Rule 54(2) of the 1994 Rules empowered the making of directions limited to the purposes he set out at paragraph 22 of his opinion. At paragraph 27 he found that there was no power to allow for the addition, at least as part of a blanket policy, of a message telling the recipient of the source of the call.

[217] The Inner House found that consideration of whether the direction was in accordance with law might involve determining whether there was an "objective need" for the measure in question and that might involve looking at the rights of others than the petitioner. The Lord Ordinary had failed or failed adequately to take into account the potential for the infringement of the Convention Rights of third parties, namely the recipients of the calls. Those recipients had rights under Article 8.2 which might be impinged upon "particularly where these arrangements include monitoring and recording of what they say in the course of the call." It was also found that the Lord Ordinary might have reached conclusions on matters of fact which had not been the subject of evidence and which were disputed by the respondents. It was not found that he had erred in his approach to the question of vires if no Convention rights of third parties were violated.

[218] There was no challenge to the recording of the calls or the part of the message which said they would be recorded. It was not accepted by the petitioner that recording breached the human rights of the recipient or that the absence of the message breached those rights.

[219] I should hold that no Convention rights of recipients were violated by the absence of the message and that their position was not relevant to the consideration of this case. The Lord Ordinary's conclusion that the 1999 Direction was not in accordance with the law was sound and his reasoning applied to the 2008 Direction also.

[220] Mr Burns set out the legislative context and reminded me that the 1994 Rules and the Directions were secondary legislation purportedly made by the Scottish Ministers under the rule-making power of Section 39 of the Prisons (Scotland) Act 1989. The direction itself had been signed by an official. Neither had been the subject of Parliamentary scrutiny or debate.

[221] Mr Burns posed a number of questions.

Were the directions contrary to Article 8, unlawful by virtue of Section 6(1) of the Human Rights Act 1998 and ultra vires by virtue of Section 57(2) of the Scotland Act? He submitted that the proper conclusion was that they were.

Were the circumstances advanced by the petitioner within the "ambit" or "scope" of Article 8?

If they were, did the insertion of the message complained of constitute interference with the petitioner's Article 8 rights?

If so, in terms of Article 8.2, was the 2008 Direction requiring the message to be inserted (a) in accordance with the law and (b) necessary in a democratic society for the prevention of disorder or crime or for the protection of rights and freedoms of others?

Mr Burns submitted that the respondents did not argue that the petitioner's situation did not come within the "ambit" of Article 8.1. It was understood, however, that it was disputed that the petitioner's rights had been interfered with by the message. The respondents would rely on the case of R (RD) v Secretary of State for the Home Department [2008] EWCA Civ 676 to argue that the message's interference with the Article 8 rights of the petitioner was not sufficiently serious to violate that article.

[222] Mr Burns submitted that communication by any means, including telephone, was an essential feature of family and private life. The provision of telephones to prisoners was a method by which SPS promoted the maintenance of family and private life and was thus a means by which the state demonstrated its respect for them.

[223] Article 8.1 protected the privacy of telephone calls. Reference was made to Anderson v Sweden ECtHR, 25 Feb 1992, paragraph 72, Klass & Others v Germany A/28 (1979-80) 2 EHRR 214, paragraph 41 and Halford v United Kingdom A/773 (1997) 25 EHRR 523 at paragraphs 16, 17, 43-44 and 49. Paragraph 44 of Halford reads as follows:

"44. In the court's view, it is clear from its case-law that telephone calls made from business premises as well as from the home may be covered by the notions of 'private life' and 'correspondence' within the meaning of Article 8 para.1 (art.8-1)..."

[224] Mr Burns also made reference to the case of Ostrovar v Maldova, ECtHR, 13 September 2005. At paragraph 105 the Court said the following:

"Any detention which is lawful under Article 5 of the Convention entails by its very nature a limitation n private and family life. However, it is an essential part of a prisoner's right to respect for family life that the prison authorities assist him in maintaining contact with his close family (see, for example, Messina v Italy (no.2)...At the same time, the Court recognises that some measure of control over prisoners' contacts with the outside world is called for and is not of itself incompatible with the Convention..."

Reference was also made to the case of Watkins v Secretary of State for the Home Department & Others [2006] 2 AC 395 and also to paragraph 21 of the Lord Ordinary's opinion in this case. Having dealt with cases concerned with issues relating to access to justice which, he said, ranked "high in the pantheon of civil rights", he went on as follows:

"But the right to respect for family life and correspondence also ranks high. In Watkins v Secretary of State for the Home Departments [2006] AC 395, 411, a case in which the prisoner sought exemplary damages where the prison officers opened his correspondence with his legal advisers 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.'"

Reference was also made to Onoufriou v Cyprus ECtHR 7 January 2010, paragraph 91, as follows:

"The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner's right to respect for family life that the prison authorities assist him as far as possible to create and sustain ties with people outside prison and to maintain contact with his close family..."

[225] It was clear, said Mr Burns, that prisoners did not lose the right to respect for their rights under Article 8 because they were in prison. In Scotland the respondents provided telephones for the use of prisoners because, as Mr Duffy accepted and as Professor Coyle said, they recognised the high importance of the telephone as a method of encouraging the maintenance of relationships. It was good for the system as it affected morale, it was good for the prisoners since they could contact and maintain important relationships and would not become institutionalised and it had important effects on re-offending. That could be seen from the affidavit of Dr Loucks.

[226] The respondents formerly conceded that the message constituted interference with the petitioner's right under Article 8. They did not do so now, on the basis of the case of RD, to which I have already referred.

[227] In that case the Court of Appeal in England made reference to the case of AB v Netherlands (2003) 37 EHRR 48.

[228] The applicant had been detained in prison in the Netherlands Antilles and made a number of complaints. Amongst other things he claimed that his correspondence was opened and read by the prison authorities and that he was prevented from establishing contact outside prison because of the extremely limited facilities available to him to write letters or telephone.

[229] The court found that there had a been violation of Article 8 in connection with interference with the applicant's correspondence with the European Commission on Human Rights and an individual who had represented him but that the alleged interference with correspondence with others was unsubstantiated. In relation to communication facilities in prison they made the following remarks at paragraphs 90 to 94 of the Judgment:

"90. As regards the applicant's complaint of being restricted in establishing contacts with persons outside prison because of limited facilities for letter writing or telephoning, the Court takes into account the importance for prisoners to be able to maintain contact with their family and friends outside prison.

91. According to the rules in force at the material time, detainees were entitled to send two or three letters per week and to receive letters at all times. The costs of writing materials and postage were borne by the prison authorities. In the circumstances, the Court cannot find that the applicant was arbitrarily or unreasonably restricted in his possibilities to maintain contacts by letter with persons outside prison.

92. In respect of the telephone faculties, the Court considers that Art.8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate.

93. Where, as in the present case, telephone facilities are provided by the prison authorities, these may - having regard to the ordinary and reasonable conditions of prison life - be subjected to legitimate restrictions, for example, in the light of the sheared nature of the facilities with other prisoners and the requirements of the prevention of disorder and crime. In this context and to the extent that such conditions may be regarded as an interference with private life or correspondence, the Court finds that they may be considered justified in terms of the second paragraph of Art.8.

94. Consequently, the court finds that the restrictions complained of do not disclose any appearance of a violation of Art.8 of the Convention."

[230] Mr Burns submitted that the court did not say that Article 8 was not engaged nor that there was no interference with the applicant's rights. Article 8 did not guarantee the right to make telephone calls but paragraph 93 of the Judgment made it clear that when such facilities were provided their use might be subject to restrictions. It found that those restrictions required to be justified in terms of Article 8.2. It then found that the restrictions in question were justified and thus there was no violation of Article 8.

[231] It was not a case where no interference was found to exist.

[232] It was not said in the present case that the respondents had a positive obligation to provide telephone facilities to prisoners. There was, however, a negative obligation on them not to interfere with the private/family life and correspondence of the petitioner.

[233] Mr Burns then turned to the case of RD.

[234] The appellant in that case was serving a term of 12 years imprisonment and had conducted a campaign against the charging structure for the making of telephone calls from prison. The complaint was based on a comparison with the charges for landline calls from public telephone boxes. The appellant submitted that the telephone was an important factor in his keeping in touch with his family and the cheaper shorter calls which he could make were inadequate for that purpose. Because of the low income of prisoners the charging structure was said to be a significant interference with their ability to communicate with their families. He complained to the prison ombudsman and the depute ombudsman upheld the complaint in August 2006. She pointed to the importance of phone contacts in a population that is known to have difficulties in letter writing and where recipients of letters might not be good correspondents. It was a principle of the prison rules that prisoners should be encouraged and assisted to maintain relations with their families and prisoners should not overall pay more for their calls than the general public. She recommended that the prison service should reopen negotiations with BT over the costs of phone calls with a view to reducing the tariff so that prisoners were not penalised for making longer calls and that, where in future any contracts or services which affected prisoners or their families were being procured, there should be an impact assessment.

[235] The prison service accepted the second recommendation but not the first. They said that any structure involved issues about cross-subsidies, there were positive benefits in charging a cheaper rate for short calls, for instance in particular calls that in the event connected only with an answering machine or were wrong numbers, and that further accommodation of long calls could only be at the expense of those making shorter calls. There was a series of inclusive exchanges in which the prison service said that on the current pattern of telephone calls prisoners were not as a category worse off than ordinary members of the public but the ombudsman suggested that current use patterns were an unreliable guide because they were necessarily influenced by the pricing structure.

[236] The judicial review proceedings which were launched proceeded on a particular basis. The argument was that limitations placed upon phone calls made by prisoners "engaged" Article 8 because they restricted their ability to maintain contact with their families. It was argued that the charging regime was not such a severe limitation that it violated Article 8 but it was violated because it had not been established that the restrictions were imposed for a legitimate reason. It was said that they were imposed because the prison service took the view that prisoners would be better served by the charging regime but no research had been done to demonstrate that that was true. It was also argued that Article 14 was engaged because, in respect of charges for phone calls, serving prisoners were treated differently from the rest of the community.

[237] The application for permission came before Sullivan J on paper. He doubted whether Article 8 was engaged at all in view of other means of maintaining contact such as correspondence visits and short telephone calls. He pointed out that the interference had been conceded in the grounds as not be so severe as to amount to an infringement of Article 8. He found that the prison service's belief that prisoners were better served by the current regime might be open to argument but was an entirely rational justification for the practice.

[238] An application was then made in court to Mitting J. He thought that it was unarguable that on the facts of the case there had been an infringement of Article 8 rights. The issue was one of fact and degree and taking into account the other means of communication with his family which were available to the appellant, the limits on long calls imposed no sensible restriction on rights.

[239] The case then made its way to the Court of Appeal.

[240] The leading judgment was given by Buxton LJ. At paragraph 9 he said the following:

"I have no difficulty with the proposition that Article 8 is engaged by an issue in relation to phone calls by prisoners to their families, if by that is meant that decisions or rules in relation to communication with the prisoner's families are a category of decision or event that can potentially give rise to a breach of Article 8. That, I would think, would be only common sense and is supported, albeit in very broad terms, by Klamecki v Poland cited by the applicant. Of much more difficulty is whether a question about availability of telephone calls in itself engages Article 8 and whether, if it does, the facts of the present case demonstrate an interference with Mr Davison's family life that is sufficiently severe to amount to an actual breach of Article 8.1. In both respects, the European authorities put before us are distinctly unhelpful to Mr Davison."

[241] Thus, said Mr Burns, the court had no difficulty with the proposition that Article 8 was engaged by an issue in relation to phone calls by prisoners to their families as opposed to the narrower question as to whether the availability of calls itself engaged Article 8. The present case, he said, was in the former category. It was an issue which related to calls by prisoners to their families.

[242] Buxton LJ went on to set out an argument presented to the Court of Appeal based on the case of Klamecki v Poland (2) [2004] 39 EHRR 7. The argument was that any limitations imposed on the ability of a prisoner to maintain contact with family and friends must be justified under Article 8.2. He took the view that that case did not come anywhere supporting a submission as broad as that. That case was directed at limits on the institution of visits in prison and the limitation of visiting rights and was not any broader than that. It was a very singular case in any event. For reasons which were unconnected with his forthcoming trial Mr Klamecki was for a year forbidden all personal contact and all uncensored letter contact with his wife and it was small wonder that that needed justification. It was, however, not only far from the facts in RD but was said by Buxton LJ to be contrary to other authorities.

In that connection he referred to the case of McCotter v United Kingdom [1992] 20479/92. Mr McCotter was a citizen of the Irish Republic serving a 17 year sentence in England and complained that the location of his imprisonment interfered with his ability to be visited by and have contact with his family in Ireland. In its admissibility determination the European Court of Human Rights said the following:

"...in the context of prisoners or other persons who are detained, the concept of 'family life' must be given a wider scope than in other situations. Prisoners generally have limited means of contact with the outside community and of maintaining relationships with family members. 'Family life' for prisoners is inevitably restricted to visits, correspondence and possibly some form of communication such as telephone calls. Emotional dependency between for example, parents and adult children, or siblings is even enhanced in the circumstances."

[243] The court went on to say that the particular complaints fell within the "scope" of Article 8.1 but then held then that only in exceptional circumstances would detention away from home infringe Article 8. The Commission found that:

"the decision of the United Kingdom Government to refuse permanent transfer arrangements to Northern Ireland discloses no lack of respect for the applicant's family life within the meaning of Article 8."

Paragraphs 12 to 18 of Buxton LJ's Judgment read as follows:

"12. That is the language of Article 8.1, which speaks of respect for family life, not of Article 8.2. The reason the application in that case was held to be manifestly inadmissible was that it did not fall under Article 8.1. If Mr Southey were right in his broad submission the European Court of Human Rights would have been obliged to go onto an Article 8.2 enquiry, because Article 8 was 'engaged'.

13. Coming closer to the facts of our case, the European Court of Human Rights said in paragraph 92 of its Judgment in AB v Netherlands [2003] 37 EHRR 48 that:

'In respect of telephone facilities, the court considers that Art.8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, particularly where the facilities for contact by way correspondence are available and adequate.'

In the light of that statement - and bearing in mind that it is our duty to keep pace with the Strasbourg jurisprudence but not to do more (per Lord Bingham of Cornhill in R (Ullah) v The Special Adjudicator [2004] 2 AC 323 at paragraph 20) - I doubt whether it is even open to us to investigate further the arrangements of telephone calls through the medium of the application of Article 8. It is quite true that, in paragraph 93, the European Court of Human Rights went on, as Mr Southey pointed out, to say something about the compatibility of the arrangements in fact made for telephone calls with the requirements of Article 8.2. But those observations about the restrictions on the telephone facility that in that case was in fact provided appeared to have been made on the hypothetical basis - not conceded by the court and inconsistent with what it had said in paragraph 92 - that the question arose at all.

14. These doubts may be academic, because it would appear that it is, as I have said, in any event conceded that the actual arrangements that Mr Davison complains of do not violate Article 8. Mr Southey told us that that concession should not be read in quite the literal terms that Sullivan J and, on reading it, myself, were minded to adopt. But, in any event, it was a correct concession.

15. Recent guidance from the House of Lords tells us that, in the case of acts or events that do not destroy the substance of family life, an interference must be of some seriousness before it can be said to fall in the ambit of Article 8 at all. One needs to have regard in this area to what it is, if I may presume to say so, the important survey of the jurisprudence contained in the speech of Lord Walker of Gestingthorpe in M v The Secretary of State for Work and Pensions [2006] 2 AC 91, and in particular his conclusion in paragraph 83. The concession that the applicant appeared to make in this case was well in line with the guidance. That guidance is also inconsistent with any suggestion that, on the basis of Klamecki alone, a general obligation of the sort that Mr Southey contended for can be found in the jurisprudence.

16. As we have seen in the grounds - but not other than for a short period before us - Mr Davison went on to contend that, although objectively what had happened to him did not infringe Article 8.1, nonetheless, that Article had been violated because the restrictions had not been imposed for rational reasons. That contention, I have to say, was impossible. If the objective situation complained of does not infringe the applicant's Article 8.1 rights, no obligation for upon the respondent to justify that situation. Justification is the business of Article 8.2, which does not come into play unless there is a breach of Article 8.1. In the grounds at least Mr Davison relied for this contention upon observations in the House of Lords in SSHD ex parte Daly [2001] 2 AC 532. That case shows clearly that the House and, more particularly Lord Steyn, whose speech was relied (on) by Mr Davison, assumed that a breach of Article 8 had occurred and concentrated on whether that could be justified; which is the stuff of Article 8.2. For those reasons, therefore, the complaint under Article 8 fails.

17. Under Article 14 Mr Davison argues that (1) Article 8 is 'engaged' as Mitting J had put it, and therefore the case sufficiently falls within the 'ambit' of another Article or Convention as to engage Article 14; and (2) Mr Davison's status as a prisoner places him in a category, in respect of which differential treatment from the rest of the community will amount to discrimination against a particular class of person.

18. At on time at least some courts in England and Wales were minded to take a very broad approach as to what constituted the ambit of particular articles of the Convention. But the House of Lords has more recently, and critically of earlier domestic jurisprudence, required a more limited approach based upon the distance of the conduct complained of from the core values that are said to be engaged. See M v Secretary of State (already cited) at paragraph 4, per Lord Bingham of Cornhill, and at paragraphs 59-60 per Lord Walker of Gestingthorpe. It will be noted from those paragraphs that Lord Walker particularly urged caution when considering the ambit of Article 8 - the Article with which we are concerned. That approach emphasises that an exercise of judgement is involved. A domestic court, in making that judgement, should be particularly influenced by any indications that can be drawn from the Strasbourg jurisprudence. Mr Southey pointed to the statements in McCotter, already quoted, as to the sensitivity of the European Court of Human Rights to the impact of imprisonment on family life. But, in the particular circumstances with which we are concerned, we are confronted with the strong statement of that same court in AB v The Netherlands that I have already cited, that places issues about telephone calls entirely outside Article 8. I consider therefore that a question such as the present (which, it should be emphasised, addresses only telephone calls and not any wider issues affecting prisoner's family life) cannot be held by a domestic court to fall within the relevant ambit of Article 14."

[244] Buxton LJ went on to consider the position if he were wrong but I need not go into that.

[245] Laws LJ and Dyson LJ both agreed with Buxton LJ. At paragraph 22 Laws LJ said the following:

"I agree entirely. I have to say I consider that this kind of case does nothing for the standing or reputation of the Convention rights. While importance is universally attached to a prisoner's capacity to maintain family ties, this complaint about the cost of longer telephone calls does not begin to involve and actual or potential violation of Article 8 or Article 14 of the Convention, as my Lord Buxton LJ has explained. For all the reasons given by him I too would dismiss this appeal and, had the application for permission stood alone as such, I would not have granted it."

[246] Mr Burns took issue with the suggestion in RD that the comments by the European Court in AB at paragraph 93 proceeded on the hypothetical basis that questions within Article 8 arose at all. He said that the Court in fact proceeded to deal with those questions and found that the restrictions imposed in that case on the use of phones were justified in terms of the second paragraph of Article 8. He also referred to paragraph 94. The Court found there to be no violation but it did not say that Article 8 was not engaged at all. In any event the factual situation was entirely different. The price structure of calls did not fall into the same category as a message attached to a call.

[247] The Court of Appeal had, under reference to M v Secretary of State for Work and Pensions, found that an "interference" needed to be of "some seriousness" before it fell within the ambit of Article 8 at all. Mr Burns submitted that it was not clear that that was the case and referred to Clayton and Tomlinson on "The Law of Human Rights", second edition, paragraph 12.328 which reads as follows:

"The court has not attempted to define a 'minimum threshold' for the engagement of Article 8. It has been said that, in the context of expulsion, that 'not every act or measure which adversely affects morale or physical integrity will interfere with the right to respect for private life' but these words do not state any general principle and it is submitted that state action resulting in 'adverse effect" will, ordinarily, be sufficient to engage Article 8. The position is different when the complaint is about 'inaction'. Where a 'positive obligation' is relied on Article (8) 'cannot be considered applicable each time and individual's every day life is disrupted' and additional factors must be identified to justify the imposition of such an obligation."

[248] Mr Burns submitted that that was correct. There was no attempt to define a limited level of interference before Article 8 was engaged. What was being discussed here was a negative right not to have calls interfered with, not a positive right.

[249] It has to be said that no mention of RD or M v Secretary of State for Work and Pensions is made in the quotation from the textbook.

[250] Mr Burns submitted that the case of M dealt with the relationship between Articles 14 and 18. M complained that she was the subject of discrimination in the exercise of her Article 8 rights, not that those rights were breached. The case dealt with what link required to be established between the discriminatory measure and the right to respect for family life in Article 8.

[251] In M, a parental allowance was denied to the applicant because she was in a same sex relationship. The question was whether the application of the maintenance formula fell within the ambit of Article 8 for the purposes of Article 14 i.e. did it related to respect for family/private life and what was the nature of that link.

[252] The facts were that M was the divorced mother of two children who spent the greater part of each week with their father. Pursuant to the Child Support Act 1991 M, as a non-resident parent, contributed to the costs of maintaining the children incurred by their father as their parent with care. M lived with a partner of the same sex and they jointed owned a house with a mortgage to which they were both contributing. In calculating the amount of her child support contribution, given the various statutory formula and definitions set out in regulations made under the 1991 Act, her partner's contribution to their joint housing costs was treated as reducing M's deductible housing costs, whereas if she had been living with a man, whether married to him or not, his contribution to the mortgage would have been treated as part of hers, so that her weekly child support payment would have been smaller. She appealed against the assessment on the grounds that it engaged her right to respect for her private and family life and her home; under Article 8, as well as to her possessions under Article 1 of the first protocol to the convention and that she had suffered discrimination in her enjoyment of those rights, contrary to Article 14. Her complaint was upheld by the Child Support Appeal Tribunal and the Child Support Commissioner and the Court of Appeal dismissed appeals by the Secretary of State. In the House of Lords, Baroness Hale of Richmond dissenting, it was held that, although the statutory scheme drew a distinction based on sexual orientation when assessing the amount of child support payable by a non-resident parent, that was not sufficient in itself to bring M's complaint within the ambit of discrimination under Article 14 or the rights to respect for family and private life under Article 8. Having to pay higher contributions than she would have had to pay if she was living with a heterosexual partner was not an intrusion on her right to respect for her private life. Her personal and sexual autonomy, which were the essence of private life, had not been invaded, nor had she been criminalised, threatened or humiliated. Her right to respect for her continuing family life with her children had not been interfered with by her increased child support liability, since it did not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which were the essence of family life. The child support regime did no more than enforce her pre-existing obligation to contribute towards the maintenance of her children.

[253] Matters had of course moved on since the Civil Partnership Act 2004.

[254] In paragraph 3 of his speech Lord Bingham of Cornhill pointed out that M did not complain that her rights under Article 8 or Article 1 of the first protocol to the Convention had been violated. She claimed that her situation fell within the ambit or scope of those provisions and that she was accordingly entitled to complain that her enjoyment of those rights had been the subject of adverse discrimination on the ground of sex, in violation of Article 14. At paragraphs 4 and 5 he said the following:

"It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol ('article 1P1'), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for. Like a noble and learned friend in para 60 of his opinion, I cannot accept that even a tenuous link is enough. That would be recipe for artificiality and legalistic ingenuity of an unacceptable kind.

5. Like Kennedy LJ in the Court of Appeal, I do not think the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less (or would do so, but for the discretionary adjustment to which my noble and learned friend refers in para 46 of his opinion). But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. I regard the application of a rule governing a non-resident parent's liability to contribute to the costs incurred by the parent with care, even if it results in the non-resident parent paying more than she would under a different rule, as altogether remote from the sort of abuse at which Article 1P1 is directed."

Paragraphs 13 to 18 of the speech of Lord Nicholls of Birkenhead run as follows:

"13. The extended boundary identified in the Strasbourg jurisprudence is that, for Article 14 to be engaged, the impugned conduct must be within the 'ambit' of a substantive Convention right. This term does not greatly assist. In this context 'ambit' is a loose expression, which can itself be interpreted widely or narrowly. It is not a self-defining expression, it is not a legal term of art. Of itself it gives no guidance on how the 'ambit' of a Convention article is to be identified. The same is true of comparable expressions such as 'scope' and the need for the impugned measure to be 'linked' to the exercise of a guaranteed right.

14. The approach of the ECtHR is to apply these expressions flexibly. Although each of them is capable of extremely wide application the Strasbourg jurisprudence lends no support to the suggestion that any link, however tenuous, will suffice. Rather, the approach to be distilled from the Strasbourg jurisprudence is that the more seriously and directly the discriminatory provision or conduct impinges upon the values underlying the particular substantive article, the more readily will it be regarded as within the ambit of that article; and vice versa. In other words, the ECtHR makes in each case what in English Law is often called a 'value judgment'.

15. This approach finds explicit recognition in the context of Article 8 in the Judgment of the ECtHR in Sidabras v Lithuania [2004] 42 EHRR 104. The applicants were former KGB officers. As such they were subject to wide‑ranging employment restrictions. The court held that the possible damage to their leading a normal personal life was a factor to be taken into account 'in determining whether the facts complained of fall within the ambit of Article 8 of the Convention'; para 49.

16. In one respect the ECtHR jurisprudence has been more specific. Article 14 is engaged whenever the subject matter of the disadvantage comprises one of the ways a state gives effect to a Convention right ('one of the modalities of the exercise of a right guaranteed'). For instance, article 8 does not require a state to grant a parental leave allowance. But if a state chooses to grant a parental leave allowance it thereby demonstrates its respect for family life. The allowance is intended to promote family life. Accordingly the allowance comes within the scope of article 8, and article 14 read with article 8 is engaged: Petrovic v Austria (2001) 33 EHRR 307, paras 27-30.

17. The latter principle is in point in the present case. The Child Support Act 1991 is one of the ways the United Kingdom evinces respect for children and the life of the family of which the child is part. In the present case that means primarily the family life of the claimant's children and their resident parent, that is, their father (the claimant's former husband). But, on this, there is an immediate difficulty confronting the claimant: the impugned Regulations have no adverse impact on that family life. The adverse impact of which the claimant complains is the adverse impact the Regulations have on her as a partner in her family relationship with her new partner. Her complaint is that she is treated differently, and is worse off financially, than she would be if she were living with a man.

18. Quite apart from her relationship with her new partner, the claimant herself enjoys family life with her own children. They come and stay with her for two or three days each week. But, again, this does not assist her. The discrimination of which she complains is not discrimination against her as a non‑resident parent. It is discrimination against her as a partner in a same‑sex relationship. There is no suggestion that the latter discrimination has had any significant adverse impact on her family life with her children."

Mr Burns also drew my attention to paragraphs 24 and 31 where Lord Nicholls said the following:

"24. The context in which this question arises in the present case is article 8 for the European Convention on Human Rights reproduced as one of the Convention rights in the Human Rights Act 1998. In the Convention itself the meaning of 'family life' in article 8 depends upon the proper interpretational of this phrase in the Convention. In this context the phrase can have only one proper interpretation. In other words, the concept of family life in article 8 is an 'autonomous' Convention concept having the same meaning in all contracting states. According to the established Strasbourg jurisprudence that meaning does not embrace same-sex partners. Under the Strasbourg case law same-sex partners still do not fall within the scope of family life...

31. The claimant also based her claim on article 14 read in conjunction with the protection article 8 affords to respect for the claimant's private life. I cannot accept this further basis of claim. By adopting the 'single unit' approach with heterosexual couples the statutory formula set out to respect their family life, not the 'private' life of each of them. The statutory scheme was not one of the 'modalities' of the exercise of the guarantee of the rights to respect for private life."

I should go on to consider paragraph 32 which is in the following terms:

"32. True, by treating heterosexual couples and same-sex couples differently the pre-amendment scheme drew a distinction based on sexual orientation, and sexual orientation is central to every individual's personality. But, here again, the claim cannot succeed. The purpose for which the statutory scheme drew this distinction was to assess the reasonable amount of child maintenance contributions payable by a non-resident parent. I do not think legislation enacted for that purpose lies within the ambit of the protection afforded to the private life of a non-resident parent. The nature of the discrimination involved here, sexual orientation, cannot be regarded as sufficient in itself to bring a case within the ambit of the private life heading of article 8. Otherwise every case of discrimination based on sexual orientation would be within the ambit of article 8. It must always be necessary to look at the wider context, including the consequences of the discrimination and the effect these consequences have on the claimant's private life. In this case it is not suggested that the discrimination had any significant adverse impact on the claimant's lifestyle."

[255] Mr Burns then went on to discuss certain parts of the speech of Lord Walker of Gestingthorpe. I reproduce what seem to me to be the relevant parts as follows:

"55. There are three issues before the House. They can be stated (substantially as formulated in the agreed statement of facts and issues) as follows. (1) Does the application to Ms M of the maintenance formula contained in the Regulations fall within the ambit of article 8 or article 1P1 for the purposes of article 14 of the Convention? (2) If so, would the application of the Regulations (if interpreted without recourse to Section 3(1) of the 1998 Act) be contrary to Ms M's rights under article 14? (3) If so, does Section 3(1) operate to modify the interpretation of the Regulations, and (if not) what other remedy should be granted?

56. In Botta v Italy (1998) 26 EHRR 241, 259, para 39 the European Court of Human Rights described (in terms which are now very familiar) the relationship between article 14 and other articles conferring particular Convention rights:

'According to the court's case law,' article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter.'...

57. The Strasbourg case law repeatedly uses, in the English language versions of its judgments, the expression 'within the ambit' or 'within the scope' in order to describe the sort of link which must be established between any alleged discrimination and the article conferring a particular Convention right (which I will call 'the substantive article'). Similarly the French language versions use terms such as 'emprise' (grasp) and 'champ' (field). An equivalent expression often found in our domestic case law, but not in the Strasbourg case law, is that Convention rights under a substantive article are 'engaged'. His use is however not entirely uniform, and may give rise to misunderstanding, as Lord Hope of Craighead pointed out in Harrow London Borough Council v Qazi [2004] 1 AC 983, 1003, para 47.

58. In the course of the appeal hearing there was some discussion, to my mind rather arid, as to whether the requirement for the alleged discrimination to be within the ambit of the substantive article was an autonomous concept. It is no doubt an autonomous concept in the sense that any attempt by a national legislature to achieve some artificial narrowing of its meaning would be ineffective. But article 14 does not use the expression; it speaks simply of 'the enjoyment of' the Convention rights and freedoms being 'secured without discrimination.' The Strasbourg case law does not, and could not, spell out any simple bright-line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article."

[256] His Lordship then went on to consider the case of Ghaidan v Godin-Mendoza [2004] 2 AC 557 and indicated that the issue to which he had referred in paragraph 58 was not one which had to be resolved in that case. At paragraph 60 he said the following:

"It was not an issue which this House had to resolve in Ghaidan. It is a live issue in this appeal. Though there is no simple bright-line test, general guidance can be derived from the Strasbourg case law, and it does not in my opinion lead to the conclusion that even a tenuous link is sufficient. Nor does it lead to the conclusion that precisely the same sort of approach is appropriate, whatever substantive article is in point. That is particularly important, I think, in considering the ambit of article 8."

At paragraph 62 he said the following:

"I have already set out the text of article 8. It has been described as one of the most open-ended provisions of the Convention...It has several striking features. First, uniquely among the Convention rights, the right conferred is a right to 'respect' for one's private and family life and one's home and correspondence: not a right to privacy or to family life, or to a home. ..."

[257] His Lordship then surveyed the jurisprudence and said the following at paragraph 71:

"71. Marzari v Italy (1999) 28 EHRR CD 175 was an admissibility decision rejecting an application under article 8 by a disabled tenant of a public housing authority. When the authority declined to carry out various works which the tenant asked for, he stopped paying rent and after a good deal of indulgence he was eventually evicted. The court, following Botta v Italy 26 EHRR 241, held 28 EHRR CD 175, 180 that there was a positive obligation on the state to assist with housing needs where ' there is a direct and immediate link between the measured sought by an applicant and the latter's private live'."

Paragraphs 80 to 84 of his speech are in the following terms:

"Connors v United Kingdom (2004) 40 EHRR 189 is a very important decision, on respect for the home under article 8, which is currently being considered by another appellate committee of this House. For present purposes I wish to refer only to one general passage about article 8, at para 82, that it:

'concerns rights of central importance to the individual's identity, self‑determination, physical and moral integrity, maintenance of the relationships with others and a settled and secure place in the community. Where general social and economic policy considerations have arisen in the context of article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of intrusion into the personal sphere of the applicant'."

The footnotes to this passage refer to Gillow v United Kingdom (1986) 11 EHRR 335 para 55, Pretty v United Kingdom 35 EHRR 1, Goodwin v United Kingdom 35 EHRR 447 and Hatton v United Kingdom (2001) 34 EHRR 1, paras 103 and 123. Although the "extent of the intrusion into the private sphere" is here being treated as relevant to this states margin of appreciation, the authorities suggested to me that it is also not without relevance to the question of ambit.

[258] The most recent case, on this part of the appeal is Sidabras v Lithonia 42 EHRR 104. The applicants had been KGB officers and as such were debarred from holding any post in the public sector, and from many responsible jobs in the private sector. The European Court of Human Rights held that their complaint fell within the ambit of article 8 (respect for private life) and observed at para 49:

"In the instant case there is more at stake for the applicants than the defence of their good name. They are marked in the eyes of society on account of their past association with an oppressive regime. Hence, and in view of the wide‑ranging scope of the employment restrictions which the applicants have to endure, the court considers that the possible damage to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within the ambit of article 8 of the Convention."

The ban was disproportionate and the claim under article 14 in conjunct with article 8 (respect for private life) was successful.

"82. Ms Monaghan submitted that since the concept of respect for private and family life is so wide and multifaceted, your Lordships should be ready to conclude, in considering a complaint under article 14, that any alleged act of discrimination is within the ambit of article 8. But if that were right virtually every act of discrimination on grounds of personal status (gender, sexual orientation, race, religion, and so on) would amount to a breach of article 14, since these are all important elements in an individual's private life. There would be little or no need for the wider prohibition in article 1 of the Twelfth protocol on discrimination in the enjoyment of any legal right.

83. My Lords, in my opinion that is not the effect of the Strasbourg case law which I have attempted to summarise. The European Court of Human Rights had taken a more nuanced, reflecting the unique feature of article 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced (Dudgeon v United Kingdom 4 EHRR 149 and Norris v Ireland 13 EHRR 186); so does intrusive interrogation and humiliating discharge from the armed forces (Smith v United Kingdom 29 EHRR 493 and Lustig-Prean v United Kingdom 29 EHRR 548). Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras v Lithuania 42 EHRR 104). Less serious interference would not merely have been a breach of Article 8; it would not have followed with the ambit of the article at all.

84. Similarly the cases in which article 14 has been considered in conjunction with the family life limb of article 8 were all (whichever way they were ultimately decided) concerned with measures are very closely connected with family life: Petrovic v Austria 33 EHRR 307 (parental leave), Mata Estevez v Spain (social security benefit for surviving spouse) and Fretté v France 38 EHRR 438 (adoption). By contrast Logan v United Kingdom 22 EHRR CD 178 (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children)."

Counsel were agreed that the last sentence in paragraph 83 should read: "less serious interference would not merely not have been a breach of article 8; it would not have fallen within the ambit of the article at all."

[259] His Lordship went on to consider what was said by the Court of Appeal and went on as follows:

"87. I do not go into their reasoning because I am content to assume that the unit consisting of Ms M, her new partner and (especially when living with them) their children by their former marriages should be regarded as a family for article 8 purposes. I would also accept that the complicated formulae employed by the 1991 Act and the Regulations are intended to strike a fair balance between the competing demands (on often limited financial resources) of the children (when living away from the new home) and the new household. To that extent the legislation is intended, in a general sort of way, to be a positive measure promoting family life (or, it might be more accurate to say, limiting the damage inevitably caused by the breakdown of relationships between couples who have had children). But I do not regard this as having more than a tenuous link with respect for family life. I do not consider that this way of putting Ms M's case brings it within the ambit of respect for family life under article 8.

88. In my opinion Ms M's case on respect for private life also fails, for similar reasons. There has been no improper intrusion on her private life. She has not been criminalised, threatened or humiliated. The tribunal respectfully recorded that she and her partner 'were living in a very close, loving and monogamous relationship'. Her complaint is that the state has calculated her liability to contribute to her children's maintenance under a formula which is different from (and on the particular facts of her case, more onerous than) that which would have been used if she had been in a heterosexual relationship. The link with respect for her private life is in my view very tenuous indeed."

[260] Mr Burns submitted that paragraph 83 was concerned with the applicant's submission, set out at paragraph 82, that any alleged act of discrimination was within the ambit of article 8 and the court disagreed with that.

[261] The "interference" in the last sentence was a reference to the discriminatory measures taken by the state against former KGB officers, as opposed to interference in the rights of the applicant under Article 8.

[262] There needed, according to Mr Burns, to be a direct and immediate link between the measures which were said to violate Article 8 and the right to respect for private and family life. I was referred to the case of Petrovic, quoted by Lord Walker of Gestingthorpe and by Lord Nichols, for the nature of that link and in particular to paragraphs 22 to 29.

[263] In that case the applicant complained that the refusal of the Austrian authorities to grant him parental leave allowance, on the ground that the allowance was only available to mothers, amounted to discrimination against him on grounds of sex. For reasons set out in the judgment, it was held that there was no violation of Article 14 when taken together with Article 8. One of the factors in the case was that contracting states enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified different treatment in law and there was no common standard in this field, the majority of the contracting states not providing for parental leave allowances to be paid to father. In fact legislation was enacted in 1989 to provide for parental leave to fathers and eligibility for the parental leave allowance was extended to them in 1990. It was thus difficult to criticise the Austrian legislator for having introduced in a gradual manner legislation which was very progressive in Europe.

[264] Paragraphs 22 to 29 of the Judgment are in the following terms:

"As the Court has consistently held, Article 14 compliments the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguard (sic) by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions ‑ and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.

23. The applicant submitted that any financial assistance enabling parents to stop working in order to look after their children affected family life and therefore came within the scope of Article 8 of the Convention.

24. The Government argued that, on the contrary, the parental leave allowance did not come within the scope of Article 8 since, first, that provision did not contain any general obligation to provide financial assistance to parents so that one of them could stay at home to look after their children and, secondly, the parental leave allowance was a matter of welfare policy which was not to be included within the concept of family life.

25. The Court therefore has to determine whether the facts of the present case come within the scope of Article 8 and, consequently, of Article 14 of the Convention.

26. In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.

27. Nonetheless, this allowance paid by the State is intended to promote family life and necessarily effects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

28. The Court has said on many occasions that Article 14 comes into play whenever 'the subject - matter of the disadvantage...constitutes one of the modalities of the exercise of a right guaranteed', or the measures complained of are 'linked to the exercise of a right guaranteed'.

29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows the Article 14 - taken together with Article 8 - is applicable."

[265] Mr Burns submitted that Lord Nichols in M was dealing with whether the link had to be substantial, not the interference. Same-sex partners did not constitute a family according to Strasbourg juris prudence, so there was no link. The discrimination was not in the scope of family life. Lord Walker was looking at the link and not the substantive interference. He did not mean that interference had to be at a particularly level of seriousness before Article 8 was breached. He was merely saying that the link between the measure impugned and family life was tenuous but he did not set up a minimum threshold for interference.

[266] In the current case the provision of phones and the conditions under which they were used in prisons in terms of the Act, Regulations and directions were designed to promote family/private life and were a method by which the State discharged his duty to show respect for Article 8 rights.

[267] Those provisions were thus within the ambit and were directly linked to respect for the rights protected by Article 8. That link was more than tenuous.

[268] The insertion of the message into a private telephone call constituted an interference with the petitioner's right to respect for private and family life and correspondence and thus required to be justified under Article 8.2.

[269] Mr Burns then turned to consider the evidence in the case.

[270] The petitioner's position was that the message was a constant reminder to him and the recipients of the call that he was in prison and it impeded the maintenance of family and private life. It was an embarrassment to him. It had caused his son, then aged about 7, to inquire what the message meant. This meant that the petitioner had to talk to his son about it at a time other than of his choosing. It caused difficulties in his relationship with his children and his ability to maintain contact with them. His ex‑wife's new partner was able to use the message to hang up, preventing him from speaking to his children. His brother John deponed that there had been a rift in the family and they were in the process of trying to improve relationships. It was of importance that the petitioner was able to participate. The message was an impediment to that process. He could not call his siblings at work and his brother stated that he would find it very difficult if a friend of his was to pick up the phone at home and hear the message.

[271] When the petitioner phoned his mother he was apprehensive that people who were unaware of his situation would pick up the phone. His mother was not happy about that and he had to make special arrangements to phone her. The message was thus an impediment to contact.

[272] There had been difficulties in contacting the school at first since the phone had been put down. He had had to use the prison office phone. He now had to write to the school and did not contact them at all by phone.

[273] There was no suggestion that the petitioner had ever abused his use of the phone or that he had ever posed or now posed any risk of interfering with witnesses or engaging in domestic abuse.

[274] Similar problems and complaints were described by the SPCC in their recommendation of January 2005. A prisoner in Shotts spoke of the stress to his wife and children which the message caused and said that it led to a reduction in the calls he made to his family. Others described their fear that their children, who did not know that their father was in prison, would pick up the phone. It was not difficult to imagine other cases. Since a blanket approach was taken, it was appropriate to consider other cases which could reasonably be contemplated and to test whether Article 8.1 rights would be interfered with in such cases. Reference was made to the case of Hirst v United Kingdom (No.2) (2006) 42 EHRR 41.

[275] Mr Burns submitted that, if there would be inevitably be an interference in at least one prisoner's circumstances that could reasonably be foreseen, the respondent would have to justify the blanket policy. Such examples included a mother in Cornton Vale who wanted to keep in touch with her children, a young offender in Polmont who wanted to speak to his parents, family and friends and a prisoner in the open estate who went out to work and to see his family at weekends. These people would want to communicate with family and friends and ought to be assisted in doing so by the respondents. Similarly, family members and friends would want to speak to the prisoner and to try to maintain relationships.

[276] The message would be a deterrent to that. It interfered with the petitioner's Article 8.1 rights in that it intruded into the telephone call, it had a deterrent effect on making some calls in the first place, it was an embarrassment and the recipient learned that the caller was in prison when he need not otherwise know. It created a need in some situations to make arrangements for calls to be made at certain times or to particular numbers and both parties heard the message at the start of each call thus impeding the maintenance of relationships.

[277] There was no defined threshold to test whether the measures complained of constituted interference. The sort of interference spoken to by the petitioner, the examples cited in the letter of recommendation of January 2005 from the SPCC and those cited above showed the sort of effect the message had and continued to have.

[278] It was irrelevant that no more recent complaints had been made. That did not mean that the effect of the message had in any way reduced or ended and it was probably due to an acceptance of the respondents' repeated position that the message was there as a matter of policy. The fact that the petitioner had been forced to make arrangements to get round the effects of the message was also irrelevant. He had been obliged to do that in response to an illegal measure. There was thus clearly established interference. The petitioner did not abuse the phone, yet the blanket policy affected him.

[279] If the above were correct, then Article 8.2 required to be dealt with and it was for the respondents to demonstrate that its requirements were met.

[280] The measure had to have some basis in domestic law and it should be accessible to the person concerned, who had to be able to foresee its consequences for him. It had to be compatible with the rule of law.

[281] There had to be an appropriate degree of protection of the individual from arbitrary interference with his rights, which in the field of interception of communications might require that the domestic legal basis therefore be specified with a degree of precision. Reference was made to Narinen v Finland ECtHR 1 June 2004, paragraphs 34 to 39, Doerga v Netherlands ECtHR 27 April 2004 at paragraphs 44 to 54 and Ciapas v Lithonia ECtHR 16 November 2006, paragraph 25.

[282] Section 39 of the Prisons (Scotland) Act 1989 allowed rules to be made for "the regulation and management of prisons" and for the "discipline and control" of prisoners.

[283] The 2006 Rules provided for allowing a prisoner to have the use of a phone and that its use should be the subject of a Direction made in relation to (c) the conditions applicable to the use of the phone and (d) the logging, recording and monitoring of calls made.

[284] The Directions under scrutiny were made under (c). In particular, paragraph 7(3)(a) of the 2008 Direction was the provision complained, providing, as it did, for the mandatory insertion of the message in all calls from prisons.

[285] In interpreting the effects of these provisions it was fundamental that a sentence of imprisonment was intended to restrict the rights and freedoms of a prisoner but he retained all civil rights which were not taken away expressly or by necessary implication. The starting point was to assume that a civil right was preserved unless expressly removed or its loss was the inevitable consequence of lawful incarceration. While Parliament might legislate to interfere with basic rights, statutory provisions, unless sufficiently clear, would at common law be interpreted as not intended so to interfere.

[286] Reference was made to R v Secretary of State for the Home Department, ex parte Simms & Another [2000] 2 AC 115 at 120G-H and Raymond v Honey [1983] 1 AC 1.

[287] The rights conferred by Article 8 were now statutory civil rights under domestic law since Article 8. They were retained unless removed expressly or by necessary implication. Section 39 of the Prisons (Scotland) Act did not expressly provide that any (let alone all) prisoners' telephone calls might be made subject to the message. Their civil right under Article 8 to the use of the telephone system provided for them without intrusion or restriction had, therefore, not been expressly attenuated in this respect. The respondents had to establish that the power to make rules for the regulation and management of prisons for the discipline and control of persons detained therein necessarily implied the power to make a rule that all prisoners' telephone calls always be preceded by the message.

[288] They were also required to establish that the blanket policy was justified as necessary and a proper response to the need for the message, that is the protection of recipients from unwanted calls. I was referred to Answer 18 of the Record.

[289] Mr Burns referred to the case of R (Daly) v Secretary of State for the Home Department [2001] AC 532.

[290] In that case the applicant was serving a sentence of imprisonment and stored in his cell correspondence with his solicitor about his security categorisation reviews and parole. Like all prisoners in the closed prison system in England and Wales he was subject to a standard cell searching policy set out in a security manual issued as an instruction to prison governors by Secretary of State who had powered to make rules for, inter alia, the regulation and control of prisoners under Section 47(1) of the Prison Act 1952. The policy required that prisoners be excluded during cell searches to prevent intimidation and to prevent them acquiring detailed knowledge of search techniques. Officers were to examine but not read any legal correspondence to check that nothing had been written on it or stored between its sleeves which was likely to endanger prison security. The applicant sought leave to apply for Judicial Review of the decision to require examination of legally privileged correspondence in his absence and leave was refused. The Court of Appeal granted leave and thereafter dismissed the application. On appeal it was held by the House of Lords that a person sentenced to a custodial order retained rights of access to a court and to legal advice and a right to communicate confidentially with a legal adviser under the seal of legal professional privilege. His rights could only be curtailed by clear and express words and then only to the extent reasonably necessary to meet the ends which justified the curtailment. The policy of requiring his absence whenever privileged legal correspondence was examined, by giving rise to the possibility that an officer might improperly read it and to the inhibiting effect such possibility would have on the prisoner's willingness to communicate freely with his legal advisers amounted to an infringement of his right to legal professional privilege. The reasons advanced for the infringement, namely the need to maintain security, order and discipline in prisons and to prevent crime, might justify the exclusion during the examination of privileged correspondence of an individual prisoner who was attending to intimidate or disrupt a search or whose past conduct had shown that he was likely to do so but not a policy of routinely excluding all prisoners. The policy was therefore greater than was justified by the objectives it was intended to serve and was outside the authorisation of section 47(1) of the 1952 Act. There was also an interference with his right to respect for his correspondence under Article 8.1 of the Convention to a greater extent than was necessary for the prevention of disorder and crime.

[291] Mr Burns referred to paragraph 18 of the speech of Lord Bingham of Cornhill which asked whether it was necessary, to the extent that it infringed the prisoner's common law right to privilege, to ask whether the policy could be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime. The challenge was directed to the blanket nature of the policy, irrespective of prisoners' past or present conduct and of any operational emergency or urgent intelligence. The Home Secretary's justification was said to rest on the risk of intimidation, the risk that staff might be conditioned by prisoners to relax security and the danger of disclosing searching methods. Paragraph 19 goes on as follows:

"In considering these justifications, based as they are on the extensive experience of the prison service, it must be recognised that the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. Any search policy must accommodate this inescapable fact. I cannot, however, accept that the reasons put forward justify the policy in its present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell, or whose past conduct shows that he is likely to do so, may properly be excluded even while his privileged correspondence is examined so as to ensure the efficacy of the search, but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted. Save in the extraordinary conditions prevailing at Whitemoor before September 1994, it is hard to regard the conditioning of staff as a problem which could not be met by employing dedicated search teams. It is not suggested that prison officers when examining legal correspondence employ any sophisticated technique which would be revealed to the prisoner if he were present, although he might no doubt be encouraged to secrete illicit materials among his legal papers if the examination were obviously very cursory. The policy cannot in my opinion be justified in its present blanket form. The infringement of prisoners' rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified. I accept Mr Daly's submission on this point."

[292] Paragraph 23 of Lord Bingham's speech reads as follows:

"23. I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8(1) gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his right under Article 8(1) to an extent much greater than necessity requires. In this instance, therefore, the common law and the Convention yield the same result. But this need not always be so. In Smith and Grady v United Kingdom (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under Article 8 of the Convention because the threshold of review had been set too high. Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy. ..."

[293] Reference was also made to the speech of Lord Steyn and in particular to his comments in paragraph 27 as follows:

"The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach... The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8...foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:

'The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.'

In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."

[294] Mr Burns also referred to R v Secretary of State for the Home Department ex parte Leech [1994] QB 198 and to the Opinion of the Inner House in this case at paragraph 26 in which, having considered Leech and Daly the Lord President went on:

"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 Strasbourg juris prudence, as part of the second aspect of paragraph 2 of Article 8."

[295] Mr Burns submitted that proportionality went beyond whether the direction was within the range of reasonable decisions which SPS could make.

[296] The Direction required a blanket policy. That meant that in practice, as spoken to by Mr Duffy and Mrs Sweeney, the prison offered the recipient of the call the opportunity to hang up for the purpose of preventing or reducing the chance of harassment or being threatened by the prisoner. The purpose of this part of the message was thus to reduce the risk of intimidation to witnesses and victims according to Mrs Sweeney's affidavit. That appeared to be the only reason for the impugned part of the message.

[297] Could section 39 be read as authorising such a provision by necessary implication?

[298] Without looking at the potential rights of third parties, the Lord Ordinary had found it that it could not. Mr Burns submitted that he was correct and invited me to adopt his reasoning.

[299] Section 39 empowered rules only for the purposes set out there. The rules had as their object the managing of the prison itself and the control and discipline of prisoners by the prison. All of these functions were ones discharged by the prison. Control and discipline of prisoners were the responsibility of the prison administration, not outside agencies.

[300] The control and discipline of a prisoner was legitimately effected by the provision to log, record and monitor calls. The message relating to that matter could be within the scope of the section by implication, although there were other means in use to provide that information to prisoners by written notice. Section 39 did not, though, empower the prison to delegate or abrogate any of these functions or part of them to members of the public, such as recipients of calls, by giving them an opportunity to stop harassment or threats by a serving prisoner. It was for the prison to discharge that function, not to obtain assistance from the public to do so. (I must say I have some difficulty with this since the message in fact is the way in which the prison actually forms its function). Further, as the Lord Ordinary pointed out at paragraph 27 of his opinion, since the message was designed to give information only to the recipient of the call, it could not be justified even on the widest interpretation of the section.

[301] The message about the source of the call was thus ultra vires the section.

[302] It was necessary to consider whether the respondents had shown an objective need for the direction, given the comments in Leech. Was there a self-evident and pressing need for the caller to require the message to be inserted into every call? Was there a problem with the intimidation of witnesses and threats to victims which there was a pressing need to address by means only of the message?

[303] Mr Burns submitted that the evidence did not come anywhere near to establishing such an objective need. Neither Mr Duffy nor Mrs Sweeney could quantify the scale of the problem. The evidence came in part from the statistics in 7/22 showing 16 threats to witnesses, 10 to visitors and 9 to victims in a 26 month period. It was not known whether these were examples of direct threats to these people and the evidence was of no value in assessing any need, let alone establishing a pressing one.

[304] Mrs Sweeney explained the 4474 intelligence reports from September 2007 until November 2009, a 26 month period. 1500 related to bringing drugs into prisons and it was not known whether any involved threats to recipients. Of the remainder 40% were related to criminal activity but it was not known what type. The remaining reports related to bullying and progression issues. However, other than that there was only anecdotal evidence from Mr Duffy that there was a wider problem. That was hardly evidence of an objective need. It was simply a subjective and unsupported view.

[305] The affidavits of Mhairi McGowan and Victoria Kerr did not provide any evidence of significance. Ms Kerr had encountered only 19 women (victims of violence) in the last 2 to 3 years whose partners were in prison and who wanted no contact with their partners or who wanted to screen calls so that only the children spoke to them. She said that not all prisoners tried to contact their victims and of the 19 women only 3 had actually heard the message. This might suggest that few prisoners tried to contact their victims. If children were involved it might be that arrangements were made to prevent direct contact anyway, thus rendering the message redundant.

[306] There was, accordingly, no evidence that the problem existed on any material scale justifying the blanket policy requiring the insertion of the message to "protect" an unknown number of people from being harassed by an unknown proportion of the prison population. Furthermore, these figures had to be seen in the context of outgoing calls of the order of 2,000,000 every year from Scottish prisons.

[307] It could not, therefore, be maintained that the respondents had established a pressing need for the message.

[308] In any event, there existed a variety of safeguards for the group of "victims" whoever they were. They could write to indicate that they did not wish to receive calls from a prisoner and the criminal process was available to prosecute and punish offenders. That was assisted by the recording of the calls. In fact the message might inhibit the criminal process.

[309] The respondents could react to information about abusive or threatening calls by removing the number from the prisoner's list of 20, in terms of paragraph 6(3) of the 2008 Direction. Even if no information was available, the Governor might require a prisoner to demonstrate that he had the consent of the recipient under paragraph 6(4).

[310] The blanket policy was more than was necessary.

[311] The Inner House had sent the case back in order that an examination of the potential for infringement of the Convention rights of recipients could be canvassed. Was there potential for such infringement? The Inner House had considered that such infringement might impinge on Article 8 rights in relation to monitoring and recording and it was accepted by Mr Burns that recipients of calls from prison on their home telephone had a reasonable expectation of privacy. If their calls were recorded and monitored without their knowledge and consent, then Article 8 would be engaged and interference with their rights established.

[312] It seemed to me that that was an important concession and indeed one which could scarcely have been withheld.

[313] Mr Burns went on to say that, assuming that the situation of a recipient of calls fell within the scope of "private life", for example, in the absence of a warning as to monitoring, it did not follow that there would necessarily be a breach of Article 8. Had there been an interference with a right to privacy was it in accordance with the law and could it be justified by reference to one of the legitimate aims specified in Article 8.2?

[314] The systematic logging of personal information relating to the use of a person's telephone, or the making and retention of a permanent audio recording of calls made by or to him would amount to an interference with his private life for the purposes of Article 8. Reference was made to PG & JH v The United Kingdom ECtHR 21 September 2001 at paragraphs 57-60, Peck v United Kingdom (2003) 36 EHRR 41 at paragraph 59 and Copland v The United Kingdom, Application No.62617/00 ECHR, 3 April 2007 at paragraph 44.

[315] Thus, where a prisoner made a call from a Scottish prison which was recorded and logged, there would be an interference with the Article 8 rights of both the prisoner and the recipient. Mr Burns submitted, however, that the absence of a warning to the recipient that the call would be recorded did not of itself result in a breach of his or her Article 8 rights and referred in this connection to the case of Dudley v HMA 2003 JC 53.

[316] In that case the appellant was charged with being concerned in supplying diamorphine at a prison. The police had been alerted by the prison authorities following a telephone call made by a prisoner to the appellant which they had monitored and she was searched when she went to visit a prisoner. Objection was taken to the leading of evidence of the search on the ground that the telephone call had been intercepted in breach of Article 8 but that objection was repelled. On appeal it was held that the substantial question was whether the intrusion upon the conversation and the subsequent passing of information derived therefrom to the police was in accordance with domestic law. There was in force at the relevant time a statutory system (the 1994 Rules) to regulate the monitoring of calls from prisoners, which made provision for reporting to others of information derived therefrom only in specified circumstances, of which the prisoner was reminded by notice on any occasion on which he used the telephone. It was clearly necessary in a democratic society for the purposes of controlling good order within prisons that information concerning the possible introduction into the prison of controlled drugs should be passed to the police and the appeal was refused.

[317] In the sheriff's report he stated that a member of the public was warned that the call originated from a prison and was asked whether they would accept the call, but it was understood that at the material time this was inaccurate. No evidence was led or could have been available about it.

[318] The solicitor advocate for the appellant referred to the notice which made it clear to the prisoner that he was deemed to have given his prior consent to the logging, monitoring and tape recording by any means of any calls made. However, he submitted inter alia that the appellant had not been made aware of that. In the absence of any warning to her that the call was liable to be monitored and listened to, let alone to be tape recorded, there was a breach of her rights under Article 8.1.

[319] Paragraphs 10 and 11 of the Opinion of the Court, delivered by Lord Cameron of Lochbroom, are in the following terms:

"10. In our opinion, these submissions are not well founded. The telephone call was made by the prisoner from within the prison. It was monitored within the prison by an officer there. The prisoner had notice that any telephone call which he made from the prison telephone might be monitored, listened to and even tape recorded. There was no prohibition against his advising the recipient of his call of this fact. There was no suggestion that the monitoring or recording of his telephone call was secret or covert in the sense in which that word is used by the European Court on (sic) Human Rights in the case of PG and JH v The United Kingdom founded on by the solicitor-advocate.. There was no suggestion that the interest of the prison or police authorities was directed to the appellant prior to the monitoring of the telephone call. There was no act of trespass upon the property of the appellant as the recipient of the call.

11. The real and substantial question which arises in this appeal is whether, on the basis that monitoring by a public authority of a telephone call between two persons involves an intrusion upon their conversation and hence upon their private lives and, thus, a violation of each individual's right to private life in terms of art 8(1), the intrusion upon the conversation of the inmate of the prison and the appellant and the subsequent passing of information derived from that conversation by the prison authorities to the police was in accordance with domestic law. We are in no doubt that the evidence to which objection was taken was admissible as having been derived from information obtained in accordance with domestic law as contained in the relevant section of the Act, in the Rules made thereunder and in the statutory Direction made under the rules that was in force at the relevant time. The information itself formed no part of the case in evidence against the appellant. This was a case in which, unlike that of PG and JH v The United Kingdom, there was in force at the relevant time a statutory system to regulate the monitoring, listening to and recording of telephone calls made from prison by a prisoner, a system which made provision for the reporting to others of information derived from such monitoring only in specified circumstances. The prisoner was reminded of that system by notice on any occasion on which he used the telephone. The recipient of any telephone call was at liberty to refuse to answer the call and, if the call was answered, must be held to have been aware of the statutory system. Within that system reporting of the details of any conversation to any authority outwith the prison only took place where there was reason on the part of the prison authorities to consider that criminal activity might be involved and, in that event, the report was made only to the police authorities. It is clearly necessary in a democratic society for the purposes of control and good order within prisons that information concerning the possible introduction into the prison of controlled drugs in contravention of the Misuse of Drugs Act 1971 should be passed by the prison authorities to the police authorities for investigation and that for the purpose of the prevention of disorder or crime within the ambit of art 8(2)...".

[320] It has to be said however that in that case the appellant knew that she was talking to a prisoner and thus knowledge of the recording etc regime was imputed to her. Quaere whether the result of the case would have been the same if she did not know she was talking to a person in prison.

[321] Mr Burns went on to say that such an interference was in accordance with the law. It was accepted that section 39 of the Prisons (Scotland) Act, Rule 62 of the 2006 Rules and paragraph 7 of the 2008 Direction gave a basis in domestic law for logging, monitoring and recording a prisoner's telephone calls. The quality of that law was sufficient to make it accessible and foreseeable for both parties to the call as to the circumstances in which and conditions on which the state was empowered to log, monitor and record it. He referred again to Copland.

[322] This interference was, though, necessary in a democratic society for the prevention of disorder or crime and proportionate to that aim. In particular that was so given the safeguards on storage and use of the logged information and recordings in terms of paragraph 7 of the 2008 Direction. Thus, a recording might be made available to the police where the Governor considered the prisoner might be involved in criminal activity (paragraph 7(11)). The implication (if need be read down under section 3 of the Human Rights Act 1998) was that this was the only circumstance and purpose for which recordings of such telephone calls could be made available to an outside agency. Furthermore, time limits were placed on the retention of the material in terms of paragraph 7(10).

[323] Thus neither the logging, monitoring and recording of a telephone call from a prisoner nor the absence of an advance warning to the recipient that this would occur were incompatible with the recipient's Article 8 rights. Any reasonable expectation of privacy which such a person might have gave way to the legitimate Article 8.2 aim of the prevention of disorder and crime.

[324] Since there was no incompatibility with Article 8 of section 39, Rule 62 and the 2008 Direction, there was no need and thus no warrant for reading any of them down using section 3. A requirement to warn the recipient of a call from a prisoner that it was to be logged, monitored and recorded could not be read into paragraph 7 by such means.

[325] While the Inner House had considered that the Lord Ordinary had erred by not considering whether the rights of third parties in relation to logging, monitoring and recording might give rise to Article 8 or section 3 issues, on examination no such issue arose. Accordingly, the statutory provisions should be interpreted without reference to such considerations.

[326] In order for section 3 to be relevant the respondents had to establish that an interpretation of section 39 which did not empower the making of paragraph 7 would be incompatible with the Convention rights of others. They would have to establish that, notwithstanding the other protections for such individuals, the UK would be in breach of its Article 8 obligations by failing to secure that the message was attached to every telephone call made by every Scottish prisoner. That Article did not go anywhere near imposing such a positive obligation. For the respondents to argue the contrary was in effect for them to argue that the United Kingdom was in breach of Article 8 on account of its failure to make provision for such a telephone message as regards prisoners in England, Wales and Northern Ireland.

[327] If I was satisfied that the Direction and Rules were in accordance with the law, I would nonetheless have to consider whether the provisions were necessary in a democratic society for the prevention of disorder or crime or for the protection of the rights and freedom of others. The onus was on the respondents to show that.

[328] As far as necessity was concerned, I was reminded that it did not have the flexibility of such expressions as "useful", "reasonable", or "desirable". It implied the existence of a pressing social need for the interference in question. The same sort of questions arose as at the stage of whether the measure was in accordance with law and no such need had been demonstrated.

[329] Reference was made again to Daly and also to Dudgeon v The United Kingdom 1982 4 EHRR 149, at paragraph 51.

[330] Secondly, the notion of necessity was linked to that of a "democratic society". A restriction on a Convention right could not be regarded as necessary in a democratic society unless, amongst other things, it was proportionate to the legitimate aim pursued. Reference was made again to Leech, Daly and Hirst. Paragraph 76 to 82 of the Court's opinion in Hirst read as follows:

"The Court recalls that the Chamber found that the measure lacked proportionality, essentially as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects and could no longer be said to serve the aim of punishing the applicant once his tariff (that period representing retribution and deterrence) had expired.

77. The Government have argued that the measure was proportionate, pointing out, inter alia, that it only affected some 48,000 prisoners (not the 70,000 stated in the Chamber judgment which omitted to take into account prisoners on remand who were no longer under any ban) and submitting that the ban was in fact restricted in its application as it affected only those convicted of crimes serious enough to warrant a custodial sentence and not including those detained on remand, for contempt of court or default in payment of fines. On the latter point, the Latvian Government have also placed emphasis on the fact that in Contracting States imprisonment was the last resort of criminal justice. The Court, first, does not regard the difference in numbers identified above to be decisive. The fact remains that it is a significant figure and it cannot be claimed that the bar is negligible in its effects. Secondly, while it is true that there are categories of detained persons unaffected by the bar, it nonetheless includes a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity. Further, the Court observes that, even in the case of offenders whose offences are sufficiently serious to attract an immediate custodial sentence, whether the offender is in fact deprived of the right to vote will depend on whether the sentencing judge imposes such a sentence or elects for some other form of disposal, such as a community sentence. In this regard, it may be noted that in sentencing the Criminal Courts in England and Wales make no reference to disenfranchisement and it is not apparent, beyond the fact that a Court considers it appropriate to impose a sentence of imprisonment, that there is any direct link between the facts of any individual case and the removal of the right to vote.

78. The width of the margin of appreciation has been emphasised by the Government which argued that where the legislature and domestic courts have considered the matter and there is no clear consensus in Contracting States, it must be within the range of possible approaches to remove the vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It is true that the question was considered by the multi-party Speaker's Conference on Electoral Law in 1968 which unanimously recommended that a convicted prisoner should not be entitled to vote. It is also true that the Working Party, which recommended the amendment to the law to allow unconvicted prisoners to vote, recorded that successive Governments had taken the view that convicted prisoners had lost the moral authority to vote and did not therefore argue for a change in the legislation. It may perhaps be said that, by voting the way they did, to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote.

80. It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote, was in general seen as a matter for Parliament and not for the national courts. The court did not therefore undertake any assessment of proportionality of the measure itself...

81. As regards the existence or not of any consensus among Contracting States, the Court would note that, although there is some disagreement about the state of the law in certain states, it is undisputed that the United Kingdom is not alone among Convention countries in depriving all convicted prisoners of the right to vote. It may also be said that the law in the United Kingdom is less far-reaching than in certain other states. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However, the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote. Even on the Government's own figures the number of such States does not exceed 13. Moreover, and even if no common European approach to the problem can be discerned, this cannot of itself be determinative of the issue.

82. Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing. Further, although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand, s.3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Art.3 of Protocol No.1".

[331] Mr Burns submitted that a policy could be disproportionate if applied automatically, indiscriminately and in an arbitrary way. Of significance was the fact that all prisoners or a great majority of them might be affected by the measure although there was no direct link between the individual case and the measure impugned. That was so here. The message was inserted in all cases regardless of the prisoner's individual circumstances.

[332] Also of significance was the lack of any Parliamentary consideration of the interests involved or assessment of the proportionality of the ban. The direction was made by the Scottish Ministers and there was no indication that Parliament had ever considered whether the message represented a fair balance between the competing interests which might be involved or considered the scale of the problem which the message was supposed to address.

[333] It was also of importance to note that no other jurisdiction had been shown to regard such a blanket policy as necessary. Professor Coyle's review was based on extensive knowledge and experience in many jurisdictions.

[334] For an example of the ECHR approach to proportionality, Mr Burns referred to the case of Ciapas v Lithuania ECtHR 16 November 2006.

[335] In that case the applicant alleged that the censorship of his correspondence with private persons when he was remanded had breached Article 8. The prosecutor, in censoring the letters, had sought to justify the decision by reference to the danger that the applicant might attempt to influence witnesses and victims of the criminal proceedings. He was convicted in April 2002 and his conviction was confirmed by the Supreme Court on 24 December 2002. A further decision as to censorship was taken on 7 February 2003, on the same grounds but in the context of another criminal case.

[336] According to the Government, a total of 121 letters received or sent by the applicant were censored. 113 of these were received from or addressed to his wife and the remaining 8 were received from or addressed to a partner of his co-suspect, his co-suspect, a detainee and two acquaintances.

[337] It was uncontested that the interference had a legal basis, namely the provisions of Article 15 of the Detention on Remand Act and the Court was satisfied that it pursued the legitimate aim of the prevention of disorder or crime. It was noted that the censorship was carried out at the stage of pre-trial investigation in the context of two sets of criminal proceedings for robbery and blackmail. At paragraph 25 the Court said the following:

"...While certain forms of censorship of some letters to or from the applicant's acquaintances - especially his correspondence with previous convicts or persons of dangerous character - may have been justified in order to protect the witnesses or victims in the impugned criminal cases, censorship of other private correspondence - especially that with his wife - may have unjustly divulged certain elements of his personal or family life. The interference that occurred in the present case may have thus been justified, but required a more specific justification.... However, the Government have not explained why the control of the 121 letters was indispensable. Indeed, even the form of censorship as allowed by the decisions of the prosecutor of 19 November 2001 and 7 February 2003... - be it opening up, reading, stopping, withholding or another form of control - was not specified, effectively amounted to a carte blanche for the authorities to have an excessive hold on the applicant's communication with the outside world... The Court ...notes the need for the national law authorising such measures to be drafted with precision, and for regular review of censorship orders as to their nature and length. The Court notes the lack of such statutory provisions herein".

It was found that there had been a violation of Article 8.

[338] Under reference to Daly, Mr Burns submitted that proportionality involved the consideration of three questions.

[339] Firstly, was the interference designed to meet a legitimate objective and if so was it sufficiently important to justify the limitation of or interference with the Article 8.1 right?

[340] Secondly, were the measures rationally connected to the objectives? Were they capable of achieving the aim?

[341] Thirdly, the respondents had to show that the imposition of a blanket policy, without exceptions, was no more than necessary to achieve the objective.

[342] It was relevant to consider that there was interference with the petitioner's rights as set out above. It was also relevant to consider the interests and considerations said to create the necessity for the measure. They had to be identified and examined to assess the weight which could properly be placed upon them.

[343] Those were said to be the need to prevent disorder or crime and the protection of the Convention rights and freedoms of third parties.

[344] The respondents said they wished to address criminal activity which prisoners might want to carry on from within the prison. The scale of that problem was unknown and there was no clear evidence of the weight which could be attached to this factor. In any event, in relation to the second part of the test, namely the rational connection between the measure and the aim, this was not addressed by information about the source of the message being given to the recipient but by the fact of recording and monitoring being known to the prisoner, which might deter that activity.

[345] Similarly, there was no evidence of the scale of abusive calls if that was comprised in disorder or crime. Neither did the message prevent such activity. The calling of the number itself, especially repeated, was harassment, as Professor Coyle had said.

[346] It was impossible to assess what weight ought to be placed on these considerations. What was clear, though, was that the evidence did not justify a blanket policy.

[347] The protection of the rights and freedoms of others was said to be relevant in respect of recipients in the form of victims of domestic abuse or witnesses who might be abused or intimidated. A recipient's Convention rights to be protected by the State from abusive calls, if such rights existed at all, did not extend to a right to have a message telling them that the call came from a prison. Those rights were protected by the civil and criminal processes available to prevent and punish such abuse. There would thus be no breach of Article 8 rights if no message was sent. To conclude otherwise would be to find that the rest of the UK was in breach of the Convention. Neither would the Convention rights of recipients be breached by the absence of a message informing them of recording and monitoring. There were thus no rights or freedoms of recipients which would justify the insertion of the message.

[348] In any event, even if some weight could be attached to the consideration and interests advanced by the respondents that did not amount to justification for the interference complained of. That was because the policy was a blanket one, regardless of whether the prisoner presented a risk of the perceived harm and of whether the recipient wanted to communicate with him.

[349] Thus the policy was in excess of what was required to accomplish any objective which had been proved by the respondents. On any view it was not necessary for all calls to be treated in this way since the majority of prisoners did not constitute any form of risk. It was accepted in the petitioner's case that no complaints had ever been received in relation to his use of the phone.

[350] Contact between prisoners and family and friends was a priority for the prison authorities and was encouraged in conformity with the obligations set out in Onoufriou v Cyprus. It was good for morale and the management of the prisons and assisted in preventing re-offending.

[351] Mr Duffy's statement at paragraph 26 of his affidavit was that, apart from high security prisoners, of whom there were about 10, and those about whom police intelligence was received (which was a relatively small number) the majority of the remaining prisoners did not require their numbers to be checked.

[352] The respondents had thus not shown that it was necessary to have the blanket policy in order to address the perceived problem.

[353] There were other ways of dealing with unwanted calls. Professor Coyle had set out in his reports and his evidence how other countries dealt with the matter. No other country had the blanket telephone message system.

[354] The English system was one example of how the matter could be dealt with. There the problem of abusive calls was dealt with by identifying the prisoners who might pose a risk of making them.

[355] Although in practice most prisoners were subject to the call enabling system so that they could only call up to 35 numbers, it was only the numbers of prisoners who fell within the paragraph 2.16 categories in the PSO which were checked. That was somewhere between 1,000 and 2,000 prisoners out of a population of about 85,000. It was possible for that system to cope with the physical checking of each number provided.

[356] That removed the need for the message about the source of the call and had the advantage of ensuring that the prisoner did not call the number of a person who did not want to be called.

[357] The Scottish system made no effort to identify which prisoners might pose a risk. Mr Duffy and Mrs Sweeney said that that was because SPS did not have the resources and the information was not readily available, but as Professor Coyle had set out, the English system did not require the sort of risk assessment exercise which seemed to be envisaged by the respondents. They proceeded on the basis of the selection of categories of prisoners rather than a risk assessment of the type which the respondents' witnesses referred to.

[358] Mr Duffy considered that only a full risk assessment would suffice and that the English system fell far below that standard whereas Mrs Sweeney appeared to acknowledge that some lesser exercise than that carried out in considering a transfer from the closed to the open estate could be carried out. It was clear, however, from the evidence of both that no consideration was given to an alternative to the message before the directions were put in place. Limited consideration may have been given to it when the telephone contract was retendered at the beginning of 2009.

[359] The English system demonstrated that it was not necessary to carry out the sort of risk assessment spoken to by Mr Duffy or Mrs Sweeney and it had not been shown to be in any way unworkable. In any event Professor Coyle pointed out at paragraph 12 of his second report that the respondents already carried out assessments about prisoners and information already held by prisons could form a basis for the identification of prisoners who posed a risk. In addition, the information which the respondents said was necessary was readily available to the Court in the form of complaints, indictments, social enquiry reports or probation reports and the like and there was no reason why such material could not as a matter of course be transferred speedily to the prison. This of course pre-supposes that there are such reports and it is difficult to see how it assists in the case of a remand prisoner or how it covers issues of contact which may be dealt with in the civil courts.

[360] There was no evidence that the differentiation referred to by the respondents' witnesses would cause bullying. Mr Duffy merely asserted that it would. There had been no attempt to show that this consequence had flowed from the English system and I should not assume that Mr Duffy's assertions were well founded. Professor Coyle stated that the Scottish system was adept at managing such problems if they did occur. Thus it would be proper to conclude that even if Mr Duffy was right the problems would be managed.

[361] The 2008 Direction provided other safeguards for recipients. Paragraph 5(3)(b)(iii) allowed the Governor to prohibit the prisoner from making a call to any specified number. Reference was also made to paragraph 5(4)(b), paragraph 6(3) and paragraph 6(4). In terms of those the Governor could prohibit the prisoner from calling anyone who had written to say they did not want to receive a call, could on reasonable grounds refuse to allow any number to be included in the list of 20 and could require the prisoner to demonstrate that he had the consent of the holder of the number.

[362] In addition, the fact that telephone calls were recorded and might be monitored allied to the fact that the prisoners knew that and were reminded of it by the notice acted as a deterrent from making inappropriate calls. The existence of disciplinary measures for breach of any of the conditions of use set out in the Direction at paragraph 5(6) was an additional factor.

[363] For all these reasons it could not be said that the message was a necessary or a proportionate measure justifying the interference with the petitioner's rights of which he now complained.

[364] In any event even if the respondents were right the message did not say what it was supposed to.

Submissions for the respondents

[365] Mr Moynihan submitted that the limited issue was the lawfulness of the first sentence of the message. However, while the absence of challenge to the remainder of the message was readily explicable in that it reflected the two decisions of the SPCC in June 2004 and January 2005, Mr Burns had gone beyond the Record to submit that the monitoring warning was not necessary. Mr Moynihan submitted that that change derived from recognition that in reality the two parts of the message were inextricably tied. There was no reason to question the monitoring warning for the reasons given by the SPCC.

[366] The focus of the pleadings in statements 17 and 18 was the result of the petitioner picking up the limited ground of complaint which the Commissioner accepted and made a recommendation on. It was consistent with the evidence of the petitioner who, when asked if he would object to a message saying that the conversation would be logged, recorded and monitored replied that he would be happy with that.

[367] The SPS did not ignore the Commissioner's recommendation. The message was amended to delete the reference to a specific prison.

[368] The recommendation to delete any reference to a prison at all was carefully considered. Mr Duffy was consulted, as his evidence made clear, and advised that he could not see how the second part of the message which the Commissioner accepted was justified could be amended to allow for deletion of the reference to the prison. He felt that the message was needed because the SPS was recording etc and needed to let people know that. He experimented with various phrases but in the end concluded that without the reference to the prison the message was more sinister and alarming. That was understandable, given that the English system placed responsibility on the prisoner to give a monitoring warning which also referred to the prison. Professor Coyle did not adversely comment on Mr Duffy's argument when it was put to him in cross.

[369] Anyone told that his call was being logged, recorded and possibly monitored was bound to wonder by whom and for what purpose. Even the petitioner accepted that people would ask where a call was coming from in those circumstances. If he was calling friends with whom he had not been in touch for a while he would tell them that it was a prison phone and that the call was being monitored and recorded.

[370] The first part of the message answered the natural question which was bound to be prompted by the second part and was an integral part of the message as a whole. The alternative raised by Professor Coyle, that the name of the prisoner could be substituted, did not meet the case because it was not he who would later come to monitor the conversation. Dudley was an example of someone being prosecuted as the result of what was said in a telephone conversation, so the mischief was real. An effective system of deterrence had to be capable of enforcement.

[371] The first part of the message had wider purposes, including the reduction of intimidation of witnesses and victims, supporting the maintenance of prison order, including the control of potential for bullying, and the discouragement of criminal activity. Mrs Sweeney's affidavit made that clear. These purposes were also fully set out in the response to the Commissioner in March 2005 (No.7/4 of process). They had also been spoken to in evidence by Mrs Sweeney and Mr Duffy. The Commissioner could have taken the matter further either by reference to it in his report or by going to the Minister but he left the matter there. See the affidavit of Mr Sadler.

[372] Mr Moynihan submitted that Mr Burns' argument was effectively a re-run of that which was accepted by the Lord Ordinary and rejected on appeal by the Inner House, depending on a narrow and literal interpretation of section 39. He had relied on a number of authorities including Raymond v Honey and Leech which considered the matter from the prisoner's perspective alone. The Court would take a narrow view of the State's power where only one person's rights were interfered with. The defining part of the judgment in the Inner House was that that "monocular view" was wrong. The prisoner and the recipient both had to be considered, so one could not begin with a pre-conceived notion that the State's powers should be narrowly construed. In the case of Ghaidan v Godin-Mendoza [2004] 2 AC 557 (which will be referred to infra) section 3 of the Human Rights Act 1998 was used so that the pre-existing understanding of the word "spouse" could be altered to include a same-sex partner. That was necessary to promote the rights of the deceased partner of a tenant. The Lord Ordinary in the current case had interpreted section 39 on a narrow basis. He was wrong in that, subject to the respondents proving that they had the factual justification to open to the door to protect recipients.

[373] Where a measure was supported by multiple reasons, the validity of each had to be considered but ultimately the question would be whether the lawfulness of the measure could be supported by their aggregate weight combination.

[374] Leaving aside the privacy of the recipient of a call, Professor Coyle appeared not to question that there was some substance in each of the other purposes of the message, namely the prevention of intimidation of witnesses and victims, supporting the maintenance of prison order, including the potential for bullying, and discouragement of criminal activity. He questioned whether those purposes necessitated a blanket measure.

[375] Those other purposes fell squarely within the scope of section 39(1) of the Prisons (Scotland) Act.

[376] The arrangements for the telephone system included potential monitoring and that was plainly for the control of prisoners. It had to be stressed that the monitoring was overt in part because the specific purpose was the discouragement of criminal activity rather than its detection. Mrs Sweeney said so in evidence in chief. Statistics showed that despite the message some prisoners engaged in criminal activity on the phone and Mr Moynihan referred to 7/22 of process. The 220 or so incidents were but a small proportion of the intelligence gathered through the phone monitoring. Reference was made to Mrs Sweeney's affidavit at paragraph 29. Professor Coyle suggested that the figures showed that the pre-recorded message did not work but the key was that only a proportion of calls were monitored and plainly, on the evidence of Mrs Sweeney, prisoners were desperate enough to take a risk.

[377] There was no reason to contradict the operational judgement of SPS that the monitoring arrangements - of which the message was part - was an essential tool in their armoury to discourage offending in prisons.

[378] That was closely linked to the prevention of bullying. It was common ground that bullying in prisons was an ever present danger. See Professor Coyle's supplementary report at paragraph 13. He said that the SPS should treat prisoners as individuals, differentiating among them and managing the consequences. He had high regard for Mr Duffy who confirmed that the SPS do indeed take pride in treating prisoners as individuals. The telephone arrangements were part of the processes built into the system to deal with the potential for bullying. As Mr Duffy put it, they had to design systems otherwise it was a jungle.

[379] He was adamant in cross examination that to allow differentiation in the phone system would give rise to bullying and exploitation. He explained in re-examination that his answer was based on 38 years of experience at every level in the Scottish Prison Service. His evidence was supplemented by that of Mrs Sweeney, who referred to differentiation among prisoners in relation to medical care and the fact that, even with close attention, prisoners will resort to extreme measures to exploit a situation, going so far as to regurgitate methadone. Professor Coyle fairly conceded that Mr Duffy's judgement on the risk of bullying was not untenable.

[380] The fact that the SPS had a tenable basis for the conclusion that a differentiated system would pose an unacceptable risk of bullying and exploitation by itself justified a blanket approach.

[381] The need to protect victims, witnesses and those vulnerable to abuse was not disputed as a consideration. Professor Coyle seemed to argue that in England that purpose was achieved by a more focused targeting of the groups mentioned in paragraph 2.16 of the PSO (6/35) and was achieved in other countries such as Ireland and Spain by other means.

[382] It was apparent from his replies that he did not know the scale of phone usage in Scottish prisons. He referred to the limit of 20 numbers as extraordinary. Ultimately he did not advance any practical alternative. His first report was a desktop study and in paragraph 44 of it he said "the arrangements in England vary according to the assessed risk". That erroneously assumed that paragraph 2.16 of the PSO was exhaustive. On that premise the English system would apply commonly only between 1,000 and 2,000 prisoners out of a total of 80,000. Subsequent inquiries disclosed, however, that was wrong. As his supplementary report disclosed, in practice the vast majority of prisoners in England were now subject to call enabling. The system involved exhaustive checking of the numbers submitted by only a limited number of prisoners and sampling for the rest. It might be that that wider use of call enabling was founded on paragraph 2.17 of the PSO but Professor Coyle did not know why this approach was taken in practice and he did not even know how the sampling was carried out.

[383] Since practice was so at variance with Professor Coyle's initial reading of the PSO, the proposition that the Scottish system could be challenged by reference to any perceived conflict with the English system collapsed. What was more, it was critical to observe that in England it would seem that for the vast majority of prisoners only a sample check was carried out. That would be consistent with the position of the respondents that fully to risk assess every prisoner was not feasible. SPS had information relevant to its operational needs but it did not necessarily have access to information relating to domestic circumstances which would enable it to tailor its restrictions. SPS could bar calls but its systems were not effective enough, due to lack of knowledge, to make that power sufficient. The example given was that of breach of the peace, which could cover a multitude of sins. There were also serious resource implications for external agencies, according to Mrs Sweeney. In addition, there were confidentiality considerations raising possible Article 8 questions. This was a very real difficulty given that it was a head of complaint in 2004, according to 6/11, under reference to complaint no.2.

[384] The SPCC had rightly rejected that complaint but there could be problems if a fuller assessment was done. The more SPS pumped outside agencies for information about prisoner's families and friends, the more one could perceive that some people, especially outside, would complain about interference with their privacy.

[385] Mr Moynihan submitted that the system worked both in its positive and negative aspects.

[386] SPS prided itself in encouraging family contact and there was exceptionally high usage of the telephone, amounting to 2,000,000 calls per annum without any appreciable complaints now about the message. It did not adversely impact on family contact. Because of the message, more liberal access was allowed to the telephone than in Spain and Ireland. Family contact was promoted as part of the overall package.

[387] The recipients were afforded the choice to decline unwanted calls and the evidence according to Mr Duffy was that around 10% of them did so. Mrs Sweeney also referred to 7/9 and 7/10 of process. The level of hanging up was higher than that which occurred with other public services, suggesting that the option to decline calls was a useful tool. Mrs Sweeney acknowledged that the system was not ideal because it would be better to stop the calls being placed. It was, however, worth stressing that SPS also operated call barring where there was information to justify it, but the option to victims and others to decline calls was a valuable additional protection, particularly to those who would fear escalation if a prisoner learned that they had complained. Mr Duffy made that point in his evidence, as did others.

[388] Victoria Kerr supported the option of the message. She was reinforced by Mhairi McGowan of ASSIST. The latter confirmed that some women positively did not want to resort to call barring for the reason given by Mr Duffy. Bearing in mind that the limited question in the case was not whether there should be a pre-recorded message but whether there should be a reference to a prison in it, her observation in paragraph 11 of her affidavit was significant. She did not see the second part of the message alone as being sufficient. As she put it "the value of the system depends upon women knowing that the call originates from a prison".

[389] Adoption of the Irish approach would involve reducing the pool of numbers in order to render the assessment task manageable. That would ignore the practical reality that even the petitioner had more than 17 numbers and the average in Barlinnie, for example, was 11. Professor Coyle was unaware of those statistics and in paragraph 21 of his supplementary report seemed to proceed on a gross under-estimate of the usage in Scotland. What would happen if there were to be a reduction in the pool of numbers? The petitioner said that prisoners would just have to deal with that but how would they deal with it? Mr Duffy gave evidence that it would be retrograde to reduce the numbers to 4. It would require very careful planning and could result in an operational disturbance. Prisoners would see it as too restrictive. It might be possible to achieve without there being a riot or kick back but it would be very tense and very foolish.

[390] There could not be a two-tier system, for example only 4 numbers for new prisoners. Mr Moynihan envisaged someone going into prison and giving prisoners the good news that the message had gone and that it was now their responsibility to tell the recipients of calls about the monitoring etc but at the same time telling them that they now could only have access to 4 numbers.

[391] The system as a whole was not an interference with Article 8 rights but a positive promotion of them.

[392] Professor Coyle agreed in cross that different countries had a variety of ways of coping with the problem, with some advantages and some disadvantages requiring to be balanced. The English system was not being advanced by him as a paradigm. It was only one of several ways of reaching the desired end.

[393] Mr Moynihan submitted that any case which descended to the level of drawing a balance necessarily engaged the idea of the margin of appreciation or its domestic equivalent, the area for legitimate policy judgement in the exercise of discretion by the Executive.

[394] In this connection he referred to the case of Shelley v United Kingdom (2008) 46 EHRR SE16 199. In that case the applicant, a prisoner, complained about the failure to introduce a needle exchange programme into English and Welsh prisons. He did not specify whether he was himself an intravenous user of drugs, claiming that other prisoners and staff could be affected by the risks of needle sharing.

[395] The Secretary of State replied that the prison service was concerned not to increase drugs use and there was no safe way of injecting drugs. Drugs use was dropping in prison, which might be in part due to a lack of needles and the concern about infectious diseases. Needle exchanges would increase the number of syringes in prison but the introduction of needle exchanges was to be kept under review.

[396] Needle exchange programmes were available in the community and it was argued that the prisoner was being discriminated against.

[397] The Court accepted that he was a victim for the purposes of the application.

[398] Mr Moynihan referred in particular to page 210 of the report where the following appears:

"The issue remains to be determined whether the different in preventive policy applied in prisons where NEPs are not available as they are in the community may be justified in terms of the principles above. The Court would note first and foremost that the margin of appreciation must be particularly wide in the area of preventive measures in which considerations such as of priorities, resources and social policies will come into play. It may be observed that while the CPT advocates equivalence in the provision of general medical treatment in prison, it deals separately with preventive care and gives no attention to the issue of NEPs. The Court also recalls that the authorities take the view that, as many individuals give up drugs use on entering prison, the best policy is to encourage this opportunity rather than to put the emphasis on ensuring access for such prisoners to clean needles. It is not for the Court to substitute its own opinion as to the wisdom of this choice. The authorities are nonetheless not insensible to the problems of infection for those who continue to use, or take up use, and are providing disinfectants, which although arguably not the optimal method, have some support as decreasing the risk.

Nor is it without relevance in this context that the risk of infection primarily flows from conduct by the prisoners themselves which they know, or should know, is dangerous to their own health, a situation that can be contrasted with damage to health flowing from conditions for which the authorities themselves are directly responsible (e.g. Kalashnikov v Russia (2003) 36 EHRR 34 [102]) and are under an obligation to bring up to the appropriate standards. Furthermore, while it is true that there is no evidence from the study so far that the provision of needles either increases needle stick injuries or drugs use within the prison, the Court considers that the authorities are entitled to give careful consideration to extending such schemes in such a context and to proceed with requisite caution as concerns their implementation. The domestic courts noted that the prison authorities were monitoring the progress of NEPs elsewhere and warned that they should keep the matter under review. It would appear that the first such programme is in fact being implemented within the United Kingdom, though in the Scottish prison system, not in England and Wales where this applicant is held.

In the circumstances therefore, the Court finds that the difference in treatment falls within the margin of appreciation and considers that it may be regarded, at the current time, as being proportionate and supported by objective and reasonable justification".

[399] Mr Moynihan submitted that this was not a substitute for Wednesbury unreasonableness. I was bound to consider the issues and scrutinise the justification advanced by the respondents but if I were satisfied that there was a risk of bullying or exploitation from a situation of differentiation then I should say that whether that justified a blanket approach or not was an operational choice for the SPS and not one for me. Professor Coyle conceded that Mr Duffy's view on the risk of bullying was not untenable. The management of that risk was a matter for SPS and if I were satisfied they had a tenable basis for its judgement, which it did, then I should not interfere.

[400] With the collapse of any suggestion that paragraph 2.16 of the English PSO was a paradigm, it was submitted that there was no basis on which to impugn the judgement of the SPS. If only a maximum of 2,000 out of 80,000 in England were subject to call enabling, then the approach of SPS might call for more anxious scrutiny but that was not the position. The vast majority were subject to call enabling and, although we did not know the reasons, that was not inconsistent with the position of the SPS that a blanket approach had much to commend it.

[401] Mr Moynihan then turned to the impact on the complainer.

[402] His case derived from the one recommendation made by the SPCC in January 2005. However he did not take that up until 18 months later in September 2006 when proceedings were commenced. The delay was attributable to the time taken to persuade SLAB to grant legal aid but even by then the petitioner accepted that things had settled down for him. He had always been a regular phone user in the early days, even exceeding his budget from time to time. (See 6/4 of process and his evidence in cross). Though he expressed himself unhappy today with the reference to prison, by September 2006 he had made arrangements to work around any possible adverse effect by telephoning his brother and James Docherty at pre-arranged times. That remained the case today and it was difficult to understand what adverse impact, if any, the message actually had on him in September 2006 let alone today.

[403] His Brother John's affidavit presented it as a source of humour, subject to a hint of embarrassment on the petitioner's part. We knew that because of concerns on the part of James Docherty's mother, the petitioner could not be in contact with Mr Docherty on any other basis. He had to do it when she was out.

[404] There was a complaint that the petitioner could not make calls to places of work because family and friends might not want their employers to know of their association with a prisoner but that would arise under any alternative system if the prison authorities had to obtain permission from the account holder for calls to be made by the prisoner.

[405] In any event the petitioner still enjoyed prison visits and could correspond by email. Mr Moynihan referred to the case of AB v The Netherlands, which I have already mentioned.

[406] While his position was that school contact about his elder son was by correspondence and not phone there was no evidence to support the proposition that contact would be more liberal if the message were absent or differently worded. No evidence had been heard as to whether it would be a good thing for schools to know that the father of a child was in prison so that they could handle his situation sensitively.

[407] In the event he said that he had to explain to his son earlier than he would have preferred that he was in prison and this probably happened in May 2004. He accepted, though, that he would have had to tell his son at some time and the boy would have learned as soon as he was old enough to read the sign outside. It was not suggested that it affected his contact with his children otherwise. He did not speak to his younger son as a consequence of the breakdown of his marriage. As for the older son, Mr Burns had suggested that the new partner used the message to intercept calls to the son. If the mother and/or her partner did not want the petitioner to speak to the boy the message merely accelerated the end of the call. They would presumably have put the phone down as soon as they heard his voice if the message was not there. Again, the problem in connection with the older son was the petitioner's poor relationship with his ex-wife, not the message.

[408] Beyond that the petitioner said that he did not like the message. He said it was horrible. He phoned every day and it was there. He was just not happy about it and it was always there as a reminder.

[409] However, it was not reminding him or those with whom he was in contact, of something long forgotten. It was a present fact that he was in prison and would be until 2015. In the case of R (L) v Commissioner of Police for the Metropolis [2009] 3 WLR 1056, it was held that to rake up ancient history could be a violation of Article 8. But the petitioner was currently in prison. This was an elephant in the room which could not be avoided.

[410] The key word in Article 8 was "respect" and that required a nuanced approach as Lord Walker had said in M v Secretary of State for Work and Pensions. That was linked to the need to be careful about the proper analysis of "engagement" in this context. Simply because the subject matter of a restrictive measure fell within the "scope" of Article 8 it did not automatically follow that the restriction itself was a breach. Mr Moynihan referred again to R (L). In that case the claimant's son had been placed on a Child Protection Register in 2002 because she had very little control of his behaviour or knowledge of his whereabouts. He was not prepared to work with social services. In 2003 the child was taken off the register after he had been convicted of robbery and sentenced to detention. In 2004 the claimant was employed by an agency providing staff for schools, working as a midday assistant at a secondary school and supervising children in the canteen and the playground at lunchtime. She was required to apply for an enhanced criminal record certificate. The disclosure showed that she had no criminal convictions but details of her child's inclusion on the Child Protection Register on the ground of neglect, her refusal to co-operate with social services and his subsequent criminal activities were included under the heading of "Other Relevant Information". The agency told her that her services were no longer required and she sought judicial review of the Commissioner's decision to disclose the information. Her appeals were dismissed up to the Court of Appeal and ultimately in the House of Lords. At paragraph 22 of his speech Lord Hope of Craighead explained that the appellant was invoking her right to respect for her private life under Article 8(1). It was submitted for the Commissioner that her rights under that Article were not engaged at all by the scheme under question because much of the information which was included in a certificate was in the public domain anyway and because it was the appellant herself who had applied for it. Counsel for the Secretary of State adopted a more nuanced approach and argued that the question whether there was an interference with the applicant's Article 8 rights had to take account of the fact that the system was not dealing wholly with the private sphere and of the nature and type of the information which was made available. He did not suggest that the applicant's consent on its own provided an answer but account had to be taken of the fact that the regime left it to the police to judge what was relevant, that the final decision on relevance was left to the employer and, inter alia, that there were strict controls on what could be done with the information as further disclosure was prohibited. Paragraph 23 runs as follows:

"23. The word 'engaged' which Ms Barton used when she said that Article 8 was not engaged in this case at all, requires to be examined with some care. It does not form part of the vocabulary of the European Court and, as Laws LJ said in Sheffield City Council v Smart [2002] HLR 639, para.22, its use is liable to be misleading and unhelpful. In Harrow London Borough Council v Qazi [2004] 1 AC 983, para.47 I said that I would not for my part regard its use as objectionable, so long as there was no doubt what it means in this context. I drew attention to the words of Sir Gerald Fitzmaurice in his dissenting opinion in Marckx v Belgium (1979) 2 EHRR 330, in which he said that the question was whether the provision was 'applicable' - a concept which is juridically distinct from that of whether the provision has been breached. In other words, the question is whether the issue that has been raised is within the scope of the article. If it is not within its scope, the question of a possible breach of it does not arise at all. If it is, the question whether there is an interference with it which requires to be justified under Article 8(2) is a separate question. The question whether something falls within the ambit of any of the rights or freedoms set forth in the Convention for the purpose of the prohibition of discrimination in article 14 reflects this approach".

[411] His Lordship went on to examine a number of cases where the scope of Article 8 had been examined and went on as follows at paragraph 27:

"27. This line of authority from Strasbourg shows that information about an applicant's convictions which is collected and stored in central records can fall within the scope of private life within the meaning of Article 8(1), with the result that it will interfere with the applicant's private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person's private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happened behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute, as in R v Local Authority and Police Authority in the Midlands, Ex p LM [2000] 1 FLR 612 where the allegations of child sexual abuse were unsubstantiated. In May even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant's ECRC was of that kind".

[412] It was held that Article 8(1) was engaged in the case but in the circumstances the appeal was dismissed. Further reference to this case will be made in due course.

[413] Mr Moynihan submitted that that explained the addendum at the end of the Inner House judgment and the decision of the Court of Appeal in RD was a practical example of it.

[414] In approaching these issues the Court had to take into account ECHR jurisprudence but only clear and constant jurisprudence, not ambiguous phrases. What the Court said in AB v The Netherlands was inherently ambiguous. It was read one way by the Appeal Court in RD and Mr Burns contended for an opposite reading. That meant the case was of doubtful value because of its inherent ambiguity.

[415] When working within an area where a balance had to be struck, as was the case here, there could be a margin for regional variation. One should therefore take care with a proposition that weight should be attached to the way things were done in England. In an area where there was scope for discretion two individuals might reach opposing conclusions and yet both might be right or, more to the point, legitimate.

[416] When competing rights of different individuals were in issue a balance had to be struck and without any pre-conceived notion that one person's interests should or should not take precedence over another. The petitioner proceeded on the express basis that only his rights were engaged by Article 8 and was therefore a "monocular" view. That was a wrong approach. That was the ratio of the decision in the Inner House and I was bound by it, albeit the Court was careful to say that whether the evidence supported the conclusions run by SPS was a matter for proof.

[417] Since the issue was "nuanced" and the concept of "respect" varied according to the importance of the right in question, the seriousness of the intrusion could be relevant to the question whether or not there was a breach. That flowed from a proper understanding of Article 8 and the "engagement" thereof.

[418] A distinction had to be drawn between a restrictive measure being within the subject matter of Article 8 and its being a breach.

[419] Mr Moynihan referred again to R (L). Justification for the disclosure in that case lay in the relevance of the information and it was relevant because the appellant's job involved children. Paragraphs 40 and 41 were relevant to the question of striking a balance. These were in the following terms:

"40. The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it 'ought' to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras.22-29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicant's private life, and if so, whether that interference can be justified.

41. This raises the question whether in R (X) v Chief Constable of The West Midlands Police [2005] 1 WLR 625, paras.36 and 37 and especially in para.41 Lord Woolf CJ struck the balance in the right place. Before he addressed himself to this issue, however, Lord Woolf CJ noted in para.20 of the judgment that it had not been suggested in that case that the legislation itself contravenes Article 8:

'No doubt this is because disclosure of the information contained in the certificate would be "in accordance with the law" and "necessary in a democratic society", in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults'.

I would respectfully endorse those remarks. Here to it was not suggested by Mr Cragg that the legislation itself contravened article 8, so long as it was interpreted and applied in a way that was proportionate".

[420] That demonstrated the balance, said Mr Moynihan. The lady had a right to privacy but children and vulnerable adults had the right to be protected.

[421] Paragraphs 42 to 44 were as follows:

"42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirements to obtain an ECRC has increased substantially since the scheme was first devised....Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants' opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates.

43. As Liberty also point out, it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality, no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on a ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.

44. In my opinion the effect of the approach that was taken to this issue in R (X) v Chief Constable of The West Midlands Police has been to tilt the balance against the applicant too far. It has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant....The words 'ought to be included' in section 115(7)(b) required to be given much greater attention. They must be read and given effect in a way that is compatible with the applicant's Convention right and that of any third party who may be affected by the disclosure: Human Rights Act 1998, section 3(1). But in my opinion there is no need for those words to be read down or for words to be added in that are not there. All that is needed is to give those words their full weight, so that proper consideration is given to the applicant's right to respect for her private life".

[422] This showed, said Mr Moynihan, that there was no pre-conceived precedence. Paragraph 45 set out the correct approach. Neither Convention right had precedence over the other. Paragraph 45 runs as follows:

"The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004] 2 AC 457, para.12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so".

[423] Mr Moynihan submitted again that there should be a proper balance and referred to M v Secretary of State for Work and Pensions which I have already mentioned. He said that this was the leading case of material being within the ambit of another Convention right. The speech of Lord Walker was the source for Mr Moynihan's submission that the seriousness of the intrusion could be relevant to the question whether or not there was a breach.

[424] He referred to paragraphs 82 and 83 of Lord Walker's speech, which I have already quoted, and submitted that it followed from the nuanced approach that some things which affected private life were not a breach, because they did not necessarily show a lack of respect. It depended on the importance of the issues and the degree of impact.

[425] In relation to the question of the margin for reasonable variation and ECHR jurisprudence, Mr Moynihan said that such jurisprudence had to be clear. He quoted Lord Hoffmann at paragraph 30 of the case of In re G [2009] 1 AC 173 where he quoted Lord Bingham of Cornhill at paragraph 20 in R (Ullah) v Special Adjudicator [2004] 2 AC 323 as follows:

"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg Court...This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less".

Was AB clear? Was there any constant jurisprudence? That was relevant to the question of the margin of appreciation. It might be that there was no clear guidance from the European Court because we were within the area of the margin which the court considered to be a matter for the domestic authorities. There would inevitably be regional variations. Paragraph 31 of Lord Hoffmann's speech pointed out that Lord Bingham's remarks were not made in the context of a case in which the Strasbourg Court had declared the question to be within the national margin of appreciation. That meant that the question was one for the national authorities to decide for themselves and it followed that different member states might well give different answers. In the current context, said Mr Moynihan, that meant that devolved administrations could give different answers. Paragraphs 32-38 read as follows:

"32. It must be remembered that the Strasbourg Court is an international court, deciding whether a member state, as a state, has complied with its duty in international law to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the member state. When it says that a question is within the margin of appreciation of a member state, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the member state.

33. As this Court affirmed in In re McKerr [2004] 1 WLR 807 'Convention rights' within the meaning of the 1998 Act are domestic and not international rights. They are applicable in the domestic law of the United Kingdom and it is the duty of the Courts to interpret them like any other statute. When section 6(1) says that it is unlawful for a public authority to act incompatibly with Convention rights, that means the domestic rights set out in the Schedule to the Act and reproducing the language of the international Convention.

34. In the interpretation of these domestic rights, the courts must 'take into account' the decisions of the Strasbourg court. This language makes it clear that United Kingdom courts are not bound by such decisions; their first duty is to give effect to the domestic statute according to what they consider to be its proper meaning, even if its provisions are in the same language as the international instrument which is interpreted in Strasbourg.

Nevertheless as Lord Bingham indicated, there are good reasons why we should follow the interpretation adopted in Strasbourg. The best reason is the old rule of construction that when legislation is based upon an international treaty, the courts will try to construe the legislation in a way which does not put the United Kingdom in breach of its international obligations. If Strasbourg has decided that the international Convention confers a right, it would be unusual for a United Kingdom court to come to the conclusion that domestic Convention rights did not. Unless the Strasbourg court could be persuaded that it had been wrong (which has occasionally happened) the effect would be to result in a finding that the United Kingdom would be in breach of the Convention. Thus section 2(1) of the 1998 Act allows for the possibility of a dialogue between Strasbourg and the courts of the United Kingdom over the meaning of an article of the Convention but makes this likely to be a rare occurrence.

36. Other reasons for following Strasbourg are ordinary respect for the decision of a foreign court on the same point and the general desirability of a uniform interpretation of the Convention in all member states. But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says that the question is within the margin of appreciation.

37. In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.

38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status...".

In paragraph 41, Lord Hope of Craighead said the following:

"41 ... As the question of illegibility only is in issue, no other facts were made known to the Court. So the case raises a short but highly sensitive issue of principle. It by no means follows that just because the law has now been changed in England and Wales by an Act of the United Kingdom Parliament and in Scotland by an Act of the Scottish Parliament, it should be changed in Northern Ireland too. Nor, indeed, does it at all follow that it should be changed by judicial decision rather than by the democratically elected Northern Ireland Assembly which now has responsibility for reforming the law on this subject, as the law of adoption is within its legislative competence..."

[426] The analysis ultimately was that Northern Ireland law had to change but that was because of the analysis and not because of any desire to produce consistency. Reference was also made to Lord Walker's dissenting speech at paragraphs 79 and 80. On the point that there can be local variations, the House was unanimous so that was a good reason to be wary of the suggestion that because things were different in England the authorities in Scotland were wrong. In the current case the Inner House said that as a matter of law the interests of third parties, where those interests were derived from rights derived from the Convention, had to be taken into account. The question was whether the balance between competing rights had been appropriately struck. Although the 2008 Direction was not considered by the Inner House they were nonetheless considering what was in practice a blanket policy. The submission for the petitioner had been that no balancing exercise was appropriate in relation to the issue of domestic law. It had been submitted that in addressing whether there was a relevant domestic provision, it was appropriate to look only at the rights of the persons claiming an infringement. The interests of others only came at the second stage, when the issue of proportionality fell to be addressed. At paragraph 24 the Inner House said the following:

"Although section 39 was enacted in 1989, section 3 of the Human Rights Act 1998 enjoins the court, insofar as it is possible to do so, to read, and give effect to, section39 in a way which is compatible with Convention rights. The wide scope of that interpretative injunction was recognised in Ghaidan v Gadin-Mendoza [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".

The right of the recipient of a call was an expectation of privacy and self-evidently a Convention right to be taken into account.

[427] At paragraph 25 the Inner House dealt with Raymond v Honey as well as the case of Simms as follows:

"While Parliament may legislate to interfere with basic rights, statutory provisions, unless sufficiently clear, will at common law be interpreted as not intending so to interfere (Raymond v Honey, per Lord Wilberforce at pages 12-13). We do not doubt that such principles remain part of our law, though in the interpretation of enactments section3 of the Human Rights Act 1998 is likely now to be the principal reference point. It is to be noted, however, that so far as brought to our attention, all the cases relied on by the Lord Ordinary arose in a context in which only the interests of the prisoner and of the state (or of institutions of the state) were in issue. None involved the need to bring into account any fundamental and competing rights of any other person".

[428] In other words if only the prisoner's rights vis-à-vis the State were in issue, then a narrow interpretation could be given to a provision but if the rights of another person came in then the question was more open to debate and such interpretation as was necessary to protect the rights of that third party should be adopted.

[429] Mr Moynihan referred to paragraph 26, where the Lord President referred to Leech and Daly and went on:

"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 Strasbourg jurisprudence, as part of the second aspect of paragraph 2 of Article 8".

[430] To some extent the proper limits were confused because in looking at the matter under domestic law issues of proportionality would be raised anyway.

[431] At paragraph 27 the Inner House said that it was in failing to take into account, or failing adequately to take into account, the potential for the infringement of the Convention rights of third parties, namely the recipients of phone calls from prisoners, that the Lord Ordinary had fallen into error.

"Each of these parties also has, under Article 8, the right to respect for his private and family life, his home and his correspondence. There must be no interference with the exercise of that right by a public authority, except such as meets the dual requirements of Article 8.2. The arrangements which a Governor makes for a prisoner to telephone persons outwith the prison may impinge upon those rights - particularly where these arrangements include monitoring or recording of what they may say in the course of the call....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".

[432] The issue was mapped out at paragraph 29 which reads as follows:

"In some cases it may be clear that the measure impugned is not 'in accordance with the law'. Miss O'Brien cited a number of European judgments in which that was so. But in the present case it cannot, at least at this stage, confidently be affirmed that the inclusion of the statement complained of is not in accordance with domestic law. The Scottish Ministers have put in issue the limited practical protection which, given the number of telephone numbers each prisoner may call and the facility for altering those numbers, the Governor can afford to recipients who do not wish to receive calls from them or to take part in conversations that may be monitored or recorded. Other associated practical issues are also raised in their pleadings. The concerns there expressed may, after proof, be seen to be ill-founded or exaggerated. They may, on the other hand, amount to factors which are material and ought properly to be brought into account when construing the scope of the power to make rules for the 'discipline and control of persons required to be detained' in prisons and like institutions and determining the validity of the exercise of that power".

[433] The Inner House were not questioning that the recipients of calls had Article 8 rights but it remained to be seen whether the particular concerns which led SPS to the message were exaggerated or ill-founded. The analysis that recipients of calls did have an Article 8 right was what led the Commissioner in January 2005 to take the view that there was justification for that part of the message relating to logging, monitoring and recording. Monitoring was not meant to be covert. The SPCC agreed that the SPS were legally obliged to tell the recipient about that. Before the action was commenced the need for a warning was accepted by SPCC and presumably also by the petitioner because of the scope of the action.

[434] In arguing that there was a reasonable expectation of privacy Mr Moynihan referred to the case of Copland v United Kingdom which I have already mentioned. The Court held that telephone calls from business premises were prima facie covered by "private life and "correspondence" for the purposes of Article 8. The applicant in that case had been given no warning that her calls would be liable to monitoring so she had a reasonable expectation as to the privacy of calls made from her work telephone. The same expectation should apply in relation to her email and internet usage. Her telephone, email and internet were subjected to monitoring at the instance of the Deputy Principal of the College where she worked. This took place in order to ascertain whether she was making excessive use of College facilities for personal purposes.

[435] The Court said, at paragraph 43, that the use of information relating to the date and length of telephone conversations and the numbers dialled could give rise to an issue under Article 8 as such information constituted an "integral element of the communications made by telephone". The storing of personal data relating to an individual's private life also fell within the application of article 8. It was irrelevant that it was not disclosed or used against the applicant in disciplinary or other proceedings.

[436] The Court considered that the collection and storage of personal information in relation to the applicant's telephone as well as to her email and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of article 8. It was held also that it was well-established in the case law that the term "in accordance with the law" implied that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by article 8(1). This was all the more so in areas such as the monitoring in question, in view of the lack of public scrutiny and the risk of misuse of power.

[437] There was no domestic law regulating monitoring at the relevant time and the interference was accordingly not "in accordance with the law" as required by article 8(2). The court did not exclude that the monitoring of an employee's use of a telephone, email or internet at the place of work might be considered "necessary in a democratic society" in certain situations in pursuit of a legitimate aim but it was not necessary to make a pronouncement on that matter.

[438] Mr Moynihan submitted that that case applied equally to the recipient of calls which monitored and recorded without her knowledge. It again showed the purpose of the warning. There was a clear expectation of privacy and an obvious breach of article 8 if information was gathered without the warning. That supported the Inner House's conclusion that there was a right in the recipient and Mr Moynihan submitted that there was a breach if there was no warning. It was crucial that what was intended by SPS was overt surveillance. The measure was intended to discourage abuse and not to detect it. It could not be overt unless both parties knew about it. If only one had knowledge then it was covert relative to the other. One did not just ask if a measure was in accordance with law but also whether it was necessary and proportionate. To fail to give a warning to the recipient would be difficult for SPS to justify as necessary when they did not intend covert surveillance. To search without a warrant was authorised by the Regulation of Investigory Powers Act 2000, section 3(1)(a) if both the sender and the recipient of the communication consented. That recognised the equal rights of the recipient and the caller. In Dudley, where it was said that the appellant had deemed knowledge of the monitoring etc regime in prison, that assumed that the person knew that the call was coming from a prison and in those circumstances knowledge could be imputed. Section 4(4) authorised interceptions in prison if carried out under any rules made under, inter alia, section 39 of the 1989 Act so Parliament envisaged that these rules would deal with the caller and the recipient. The respondents' submission that section 39 was habile to deal with the regulation of phone interception in jail addressing the rights of both the caller and the recipient was consistent with section 4(4).

[439] SPS was successful in promoting family contact. They adapted the message by removing the name of the particular prison and they gave serious consideration to the recommendation that the reference to prisons be removed altogether. The fact they decided not to do so showed no lack of respect for family life. On the contrary, it was the product of a considered balance of the competing factors. Professor Coyle was prompted to say that the message could be amended by substituting the name of the prisoner for the reference to a prison but that showed the flaw in the petitioner's approach. It dealt with only one of the considerations. It created the opportunity for a potentially vulnerable person to decline the unwanted call but did nothing in relation to the prevention of bullying or the privacy angle. Telling a recipient that the call came from a prisoner still left them uninformed as to the identity of the person by whom the call might be monitored. Paragraphs 92-93 of AB v The Netherlands were to the effect that the Convention did not guarantee the right to make telephone calls, particularly where (as here) adequate facilities were available for contact by correspondence. The court did, however, go on to refer to the situation in which telephone facilities were made available. It confirmed that restrictions might be imposed "having regard to the ordinary and reasonable conditions of prison life" which could amply cover, for example, monitoring to discourage illegal activities and arrangements to minimise scope for bullying or exploitation.

[440] Furthermore, the court did not say that such restrictions were necessarily an interference with article 8(1). It as only observed that in that case "to the extent that such measures may be regarded as an interference with private life" they were justified.

[441] Mr Moynihan referred again to RD at paragraph 13. The petitioner had visits and means of correspondence and he fell within the scope of paragraph 92 of AB. If the State had no obligation to provide something but did in fact provide it then the Convention applied and one could not discriminate in the manner in which the provision was made. Paragraph 93 was heavily qualified. It referred, for example, to the shared nature of the facilities with other prisoners and the requirements of the prevention of disorder and crime. Preventing another prisoner from masquerading as a prisoner with no message attached to his telephone calls would be consistent with that. Monitoring the messages was part of the strategy of preventing crime and came within the legitimate restrictions in paragraph 93. The paragraph did not state clearly that to qualify the use of the phone interfered with article 8 rights. Any suggestion that it did flew in the face of paragraph 92 and the first half of 93 itself. Mr Moynihan said that the situation was akin to giving a prisoner a half glass of beer and then being subjected to a complaint that because he was given alcohol he should have a full glass. SPS could justifiably deny any access to the telephone or resort to the Spanish approach where prisoners' calls were overheard on every occasion but instead they gave prisoners generous rights of access to the telephone. That promoted human rights and contact with families. The complaint was looking on this as a half empty glass but in fact it was half full. The impact on the petitioner was trivial and there was no breach of his article 8 rights.

[442] There were operational justifications for the message such as to take it within the exceptions mentioned in paragraph 93. In any event, so minor were the practical impacts on the petitioner that it was not an interference with their rights (see RD).

[443] In any event, it was submitted that the message could be amply justified under article 8(2) if required.

[444] The petitioner's case was that less intrusive options might have been pursued by, for example, following the English model of identifying those who posed a specific risk or possibly by following the Irish model and reducing the pool of authorised numbers. That had been explored.

[445] Mr Moynihan then submitted that the time dimension had to be taken into account in assessing proportionality. Judicial review was a process intended to improve good administration and not intended to engender disruption by requiring authorities to correct things long after the event. Reference was made to King v East Ayrshire Council 1998 SC 182 and in particular to the Opinion of the Court at page 196, paragraphs C-F as follows:

"It is recognised that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it (O'Reilly v Mackman at pp. 280H-281A per Lord Diplock). Here the petitioner asks us to reduce the respondents' decision on a basis which would have been open to her from the outset, but which she did not advance then, preferring instead to use a different argument to attack their decision. This new attack is mounted ten months after the judicial review proceedings began and over a year after the school was closed. Judicial review is a flexible procedure and the court can, of course, take account of new matters and grant different remedies from those which are originally sought. In an appropriate case that could be done even at a late stage, but in deciding whether to grant a remedy on a different basis the court must not lose sight of the wider interest in good administration which Lord Diplock describes. We have borne this wider in mind when considering the petitioner's new case for reduction. We have also had regard to the other circumstances which we have mentioned. In this unusual situation, even though it appeared likely that the respondents failed to have regard to the historic attendance figures when calculating the school's pupil capacity, we are satisfied that we should not reduce their decision."

[446] Mr Moynihan said that we were now six years on from the introduction of the message, the petition having been presented 30 months after its introduction. There had been no challenge to the evidence of Mr Duffy and Mrs Sweeney that the message was not now a subject of much complaint, Mrs Sweeney saying that it was accepted as part of the culture of prison life. That was consistent with Professor Coyle's evidence that prisoners accepted reality.

[447] The fact that time had moved on, even before the petition was presented, was significant. Professor Coyle's evidence was that a balance had to be struck. Different countries might have struck the balance differently, with Spain and possibly Ireland being more restricted. There was a premium on consistency in relation to prison management unless there was good reason to change. The balance was struck in Scotland in 2004 and the present arrangements were part of the accepted culture. The minor impacts on the petitioner, if any, were grossly outweighed by the risks associated with change. Even a changed system could itself give rise to an article 8 challenge, depending on its precise composition. Far from there being good reason to change, there was every need to avoid the risk that change might give rise to, such as an operational incident. It would be disproportionate in the circumstances to make an order in favour of the petitioner.

[448] Professor Coyle had said that he was not advancing a paradigm and that the English system was just one of several ways of reaching the same end, but what was that end? His evidence was consistent with that of Mr Duffy and Mrs Sweeney that the ends included the reduction of intimidation of witnesses and victims, supporting the maintenance of prison order, including the control or potential for bullying and discouraging criminal activity. If there was a difference between the two systems it was marginal. The evidence did not show whether there was truly any practical difference between the two systems as regards those ends.

[449] Professor Coyle had, however, misunderstood one of the other ends being served, namely the advising of recipients that there was a monitoring regime in play, or the "privacy angle". In his reports he twice implied that only the caller required the warning and he also said that in chief. That showed a complete lack of insight. The fact was that both parties had a legitimate expectation of privacy. It was accepted by the SPCC in 2004 and repeated in the 2005 recommendation. It was also consistent with the Inner House decision in this case.

[450] The English PSO implicitly acknowledged the same mischief because all prisoners were placed under a responsibility to give the warning in Annexe B to the recipients of calls. Thus both the Scottish and English approaches required an almost identical message to be conveyed to the recipient of the call. The difference between the two was that in Scotland the message ensured that the warning was given whereas in England it was left up to the individual prisoner.

[451] It was tacitly assumed that because the English system was what it was it must be lawful but that could not be taken for granted. Secondly, it was open to argument that it was more embarrassing to require the prisoner to make the statement personally and hence was a more gross intrusion into his privacy. Thirdly, we knew from the evidence of Mr Duffy that such a system did not work. It was tried in Scotland before 2004 and prisoners did not convey the warning. If there was a need to balance the rights of two opposing parties then it was for the public authority to do it and not to delegate responsibility to one of the parties, who was then free to give precedence to his own rights over those of the other. It was open to question whether the English regime achieved a lawful balance.

[452] The petitioner relied on the Outer House decision in this case. However it should not weigh with me. It was reversed on appeal and the Lord Ordinary wrongly assumed that calls were pre-approved and that there was no need for an additional precaution. Calling the numbers PANs was a misnomer.

[453] It would be wrong, however, to approach the question on the basis that the message existed solely for the limited purpose of warning non-prisoners of the fact of monitoring. There was a combination of reasons as explained by Mrs Sweeney. The protection of the privacy of recipients was but one. There was nothing in section 39 to say that the arrangements under it could not have incidental benefits. That said, a proper appreciation of the background to the privacy issue showed that even the privacy justification could be seen to come within section 39 of the 1989 Act. The explanation was that advanced by the SPCC in January 2005 and spoken to by Mrs Sweeney in her evidence.

[454] The key fact was that SPS saw a need for overt monitoring in order to discourage criminal activity. See Mrs Sweeney's evidence-in-chief. That was what was judged to be necessary for the "control of persons required to be detained therein" (section 39).

[455] The Regulation of Investigatory Powers Act 2000 recognised the distinction between covert and overt surveillance. Authorisation was regulated more directly in Scotland under the Scottish Act and Mrs Sweeney's point was that authorisation had not been secured for covert surveillance.

[456] Human rights compliance required that a measure be both in accordance with law and proportionate or necessary in a democratic society.

[457] Overt surveillance occurred where both parties to the conversation had consented to the interception. Under section 4(4) of RIPA the lawfulness of the monitoring regime in Scottish prisons was secured via rules under section 39 of the 1989 Act. That represented parliamentary recognition that the protection of rights of all those likely to be affected by prison monitoring could be secured under the 1989 Act.

[458] Ironically, since the 1989 Act and the Rules and Directions required that the pre-recorded message alert recipients to the fact of potential monitoring, the regime would not be in accordance with law without that message. That moved matters well beyond what was considered in Dudley. Mr Moynihan submitted that there would be room to doubt the general application of the proposition that recipients must be aware of the statutory restrictions in absence of knowledge that the call came from prison. It was a necessary part of the knowledge that one was being recorded that one knew who was doing it. It would affect what was said. Particular care had to be exercised in the context of a prison where one was possibly discussing criminal activity. It was discouragement that was wanted, not detection.

[459] In any event there was nothing wrong with balancing the competing rights and giving the recipients of a call the added protection of explicit knowledge of what they would otherwise potentially only be deemed to know. An explicit warning gave the recipient more effective protection of his right to privacy than the imputation of knowledge.

[460] Even if the message were dispensed with and a new legislative arrangement put in place, Convention compatibility would depend on such an arrangement being judged to be "necessary". Without the message what was intended to be overt monitoring at once became covert as regards an unaware recipient of calls and it was immediately apparent that it would be difficult to justify such covert surveillance as being necessary when the SPS intended it to be overt.

[461] Could section 39 be construed as permitting the attachment of a message intended to alert recipients to the fact of overt monitoring?

[462] One approach would be to say that it was self evidently an indispensable part of the judgment that there should be overt monitoring, in order to discover criminal activity involving prisoners. Even if Raymond v Honey remained the sole guide to the correct approach to interpretation of the 1989 Act the objective that it be overt could not be secured without the message and therefore the power to attach the message could be seen as a necessary implication supported by the Act. That would be consistent with section 4(4) of RIPA. An overt surveillance could not be achieved without both parties to the call being aware that it was liable to monitoring.

[463] However, Raymond v Honey was not the sole guide to the correct approach to statutory interpretation. Section 3 of the Human Rights Act 1998 had to be considered. Monitoring of the call by prison authorities engaged the article 8 rights of the recipient just as much as monitoring of an employee's call by an employer engaged the former's article 8 rights. Both had an expectation of privacy and protection of the recipient's right could be promoted through liberal interpretation of the Prisons (Scotland) Act.

[464] Mr Moynihan referred again to Ghaidan v Godin-Mendoza. In that case Lord Nicholls discussed the limits of section 3 and concluded that it was circumscribed only by what was "possible". Paragraphs 27, 29, 32 and 33 of his speech are as follows:

"27. Unfortunately, in making this provision for the interpretation of legislation, section 3 itself is not free from ambiguity. Section 3 is open to more than one interpretation. The difficulty lies in the word 'possible". Section 3(1), read in conjunction with section 3(2) and section 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention-compliant by application of section 3. Sometimes it would be possible, sometimes not. What is not clear is the test to be applied in separating the sheep from the goats. What is the standard, or the criterion, by which 'possibility' is to be judged? A comprehensive answer to this question is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates.

28 One tenable interpretation of the word 'possible' would be that section 3 is confined to requiring courts to resolve ambiguities. Where the words under consideration fairly admit of more than one meaning the Convention-compliant meaning is to prevail. Words should be given the meaning which best accords with the Convention rights

29 This interpretation of section 3 would give the section a comparatively narrow scope. This is not the view which has prevailed. It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning. ...

30 From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3....

32 From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.

33 Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. ... The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. ..."

In Ghaidan the word "spouse" was read so as to encompass a single sex partner.

[465] All of this was canvassed before the Inner House, which considered Honey, Leech and Daly. The court rejected the line of argument advanced by the petitioner in reliance on those cases.

[466] The right of the recipient to privacy is an interest "having a basis in a Convention right". Mr Burns accepted that. The import of that, following the decision of the Inner House, was that the recipient's Convention right "must ... be taken into account" in interpreting section 39. It did no violence to section 39 to construe it as supporting any action by the prison authorities to protect the rights of persons outside prison, where such protection was no more than an integral feature of the decision that they had taken to control prisoners. In other words, if the judgment was that there should be overt monitoring of prisoners' calls, it was an integral part of that decision that outsiders should have as much awareness of monitoring etc as the prisoner. The SPS as a responsible public authority, should do what it can to alert outside recipients to that fact. That was part and parcel of doing what was required for the "control of persons required to be detained therein".

[467] Apart from any consideration of privacy, section 3 of the 1998 Act would support the use of section 9 to promote the protection of witnesses, victims and other vulnerable persons from abuse by prisoners. The "control of persons required to be detained therein" was not confined to their relationships with others "detained therein". It could extend to regulating prisoners' conduct relative to persons outside if that was necessary to protect the rights of others. Mr Moynihan suggested that a prisoner could hardly say that he was free to build a bomb in prison simply because it was his intention to lob it over the prison wall. Similarly, the prison authorities could take action to prevent the telephone facilities being abused to harass individuals in the community.

[468] Mr Moynihan went on to remind me that the petitioner had argued that the lawfulness of the message could be tested not by reference to his own circumstances but by reference to some hypothetical persons at the margins. That assumed that he had failed to show a sufficient adverse effect on him or failed to show that any infringement could be justified relative to him. That was relevant.

[469] Reference had been made, for example, to someone in the open estate who wanted to keep in touch with young children without their realising where he was. However, we had heard no evidence from such a person nor had he or she been identified by name. To say that there was any practical problem was to assume that such a person could not make arrangements to work around the message, such as by arranging to phone at set times. Since the system still allowed the prisoner liberal access to the phone, broader than allowed in Spain or Ireland, one wondered if the prisoner would complain. He or she might be content with the balance and the opposite could not be assumed, particularly as it was now an accepted part of prison culture. In any event, this argument ignored the specific reasons for maintaining a consistent approach, notably the need to eliminate a source of bullying and exploitation. That applied even in the open estate.

[470] Proceedings under the Human Rights Act could only be brought by a victim (section 7(1)). That same qualification applied to proceedings under the Scotland Act 1998 (section 100(1)). The construct of a "victim" went beyond mere personality and was a reminder that human rights analysis depended on the consideration of concrete cases and not abstract challenges. Reference was made to the case of Golder v United Kingdom (1975) EHRR 524, paragraph 39.

[471] In that case the applicant had been tentatively identified as being involved in a disturbance at a prison. The governor stopped letters written by him about the incident to his MP and a chief constable. A prison officer, who had suggested that he had been assaulted by the applicant, withdrew the allegation and the charges against the latter were not proceeded with. The applicant sought but was refused permission to consult a solicitor with a view to instituting libel proceedings against the prison officer. It was found that that refusal was a breach of article 6(1) and (8). Paragraph 39 is in the following terms:

"The Government and the Commission have cited examples of regulations, and especially of limitations, which are to be found in the national law of States in matters of access to the courts, for instance regulations relating to minors and persons of unsound mind. Although it is of less frequent occurrence and of a very different kind, the restriction complained of by Golder constitutes a further example of such a limitation.

It is not the function of the Court to elaborate a general theory of the limitations admissible in the case of convicted prisoners, nor even to rule in abstracto on the compatibility of rules 33(2), 34(8) and 37(2) of the Prison Rules 1964 with the Convention. Seised of a case which has its origin in a petition presented by an individual, the Court is called upon to pronounce itself only on the point whether or not the application of those Rules in the present case violated the Convention to the prejudice of Golder."

There was no concrete basis for the margin argument here, but in any event SPS had shown a sufficient justification for the blanket approach.

[472] In Hirst there was a blanket ban on prisoners voting and the European Court looked at him, as well as the marginal impact on those with, for example, lesser sentences. Mr Hirst, though, was a concrete example, an actual person who was denied his right to vote. He was not a surrogate or a voice for others. His right was actually violated. If these prison rules and the direction violated the petitioner's right then declarator should be pronounced. If not, then it was inappropriate, following Golder, for the petitioner to suggest conjuring up some alternative paradigm whose rights might have been infringed.

[473] For all these reasons the petition should be dismissed.

Reply for the petitioner

[474] Mr Burns said it was not accepted that the two parts of the message were inextricably tied. Each part constituted an interference with his article 8 rights. The first part was not in accordance with law and neither necessary not proportionate. The second part was not required as a matter of law in order for SPS to comply with any obligations towards the recipients under article 8. A monitoring etc warning did not breach the prisoner's article 8 rights but it would be not breach the recipient's article 8 rights if it was not given.

[475] Although the recording etc of the call would interfere with both persons article 8 rights, such interference was in accordance with the law and justifiable under article 8.2 in the interests of the prevention of disorder or crime by the prisoner. See Dudley.

[476] If the warning was given to a recipient who nonetheless carried on with the call then the recipient could no longer have any reasonable expectation of privacy. Any complaint might then fall outwith the scope of article 8.1.

[477] If the petition succeeded then it would be for the SPS to decide whether it wished to maintain the warning. There were reasons for and against it and there were also possible alternatives, such as saying from whom the call came. The petitioner did not maintain that the law and article 8 in particular compelled the SPS to remove the warning any more than it compelled them to have it. Mr Burns agreed that the SPS had considered the SPCC recommendation and rejected it rather than not considering it at all. However, their rejection was based on Mr Duffy's proposition that SPS needed to give the warning to the recipient. As Mrs Sweeney's evidence made clear, the perceived need for the warning was based on an assumption that without it there would be restrictions in the use to which the recording of the call could be used in prosecution but Dudley made it clear that that assumption was erroneous.

[478] SPS was wrong because it thought it was legally entitled to retain the first part and that it was legally required to retain the second. In fact it was legally required to remove the first part and entitled to dispense with the second.

[479] It was wrong to imply that the "responsibility" placed on English prisoners to tell the recipient that the call came from a prisoner was a legal one. English prisoners had the choice whether or not to tell recipients the equivalent of one or other part of the Scottish message. They knew that they were in prison and that the call was being logged etc. If a prisoner's call was answered by someone who knew he was in prison he might well tell them to be careful but if not he was not obliged to do any more.

[480] Substitution of the prisoner's name for a Scottish prison would remove any sinister aspect to the second part of the message and would meet that need. The respondent conflated that need with the need to advise the recipient of the fact of recording. The possibility of prosecution of the recipient was implied to be a mischief which presumably the certain part of the message addressed and it was said that effective deterrence was required.

[481] The deterrence however, was to deter the prisoner from committing crime in the context of the regulation and management of prisons. That was achieved by the notice, not the message. It was no part of section 39 to provide a system of deterrence in relation to persons outside the prison who might choose to provide evidence of the commission of criminal offences in the course of phonecalls from prisoners. (The difficulty I have with that proposition is that unless the recipient knew of the fact of surveillance there would be no deterrence on him or her from inciting a prisoner to commit crime).

[482] Mr Burns submitted that if the recipient provided evidence implicating himself in a criminal offence that could be used against him according to Dudley.

[483] By analogy, if the police obtained RIPA authority to record a suspect's telephone and in the course of a call by him to a third party that third party admitted to an offence, there could not be said to be any obligation on the police to notify that person in advance not to do so nor to have in place any system to deter him from doing so. They could not entrap the person into making admissions but beyond that they had no duty to protect him from incriminating himself. The difficulty with that of course that in such a case the RIPA authority would cover that situation. It is implicit in a RIPA authorisation that the contributions to both parties to telephone calls can be intercepted.

[484] As far as bullying was concerned, Mr Burns submitted that it was not clear from the respondents' submissions what should be placed in the balance in the exercise of assessing proportionality. If it was a need to prevent crime and disorder, it was not accepted that a the sort of behaviour described by Mr Duffy was embraced by the considerations of crime and disorder set out in article 8(2). He was talking of pressure and intimidation by one prisoner or commercial incentives.

[485] It was not said by the respondents that the Convention rights of prisoners "bullied" in this way would be violated if the message was dispensed with and a differential system put in place. While Mr Duffy's evidence about bullying demonstrated why a system like the English one was not adopted, it did not provide the basis for placing this consideration in the balance of proportionality ,since it was not one of the legitimate aims in article 8.2. Bullying and exploitation by itself did not provide justification for the blanket approach. Even if it might be said to fall within any of the elements of article 8.2, a message applying to all calls could not be said to be the minimum necessary to combat crime or protect the rights of bullied prisoners, especially when this type of behaviour was already effectively managed in Scottish prisons. It went grossly beyond the minimum and was outwith any reasonable margin of appreciation.

[486] In any event, Mr Duffy's evidence was no more than a dogmatic assertion. No investigation had been done in England to show whether or not a system which differentiated between prisoners had result in bullying or exploitation. In England, although the majority were on call enabling, it was only those within the paragraph 2.16 categories whose numbers were always checked and there were additional random checks. Thus only those who were thought on objective grounds to pose a risk of abuse were subjected to screening measures to protect potential recipients. That reduced the screening measures to manageable proportions without the need for elaborate risk assessments. The majority were not subject to privacy infringements and that was the hallmark of a proportionate response.

[487] It had not been shown that two million calls a year from Scottish prisons was exceptionally high phone usage and therefore an indication of the popularity of the existing system.

[488] Professor Coyle was not saying that the Irish system was one to be adopted here but simply cited it as a system at one end of the spectrum. The limited numbers prisoners were allowed in Ireland represented the level with which the Irish system could cope, having regard to the fact that all those numbers were checked.

[489] As far as delay was concerned, the time which had passed between the petitioner's first complaints to the SPS and this hearing could not be blamed on him. There was a two-year delay in obtaining legal aid and there had been further delays between hearings in this court. In King the petitioner had delayed in bringing the new proceedings and had not advanced the same arguments to the council before closure as she advanced at court. The situations were not comparable.

[490] The respondents did not say that recipients of calls would have their article 8(1) rights violated if the message about recording was not there. All that was said was that they would have a legitimate expectation of privacy. That was not disputed but their article 8 rights were not violated. Mr Burns submitted that there was a presumption of regularity. When a course of procedure has followed upon the public act of an administrative body the act and the formalities associated with it were legally and regularly performed according to the presumption. This was in answer to the submission made that it could not be taken for granted that the English system was lawful. I suppose, though, that the same could be said about the Scottish system.

[491] The Lord Ordinary's task was a statutory interpretation of section 39. In doing so he directed himself to the guidance on the case law and distilled certain propositions there from. The Inner House did not doubt that the principles to be derived from these cases still remained part of our law.

[492] As far as section 3 of the 1998 Act was concerned, Mr Burns referred to paragraph 2.3.4 of Lester & Pannick on Human Rights Law and Practice to the following extent:

"... Since the object of section 3 is to avoid, wherever possible, action by a public authority which would otherwise be unlawful under section 6 as incompatible with Convention rights, the interpretative duty under section 3 arises only where there would otherwise be a breach of Convention rights under domestic law."

Therefore, unless there was a reading of a statutory provision which would render it incompatible with Convention rights, section 3 did not require a different reading.

[493] At paragraph 24 of their judgment in the current case, under reference to Ghaidan the Inner House stated:

"When a Convention right is engaged, the relevant statutory power may require to be read more broadly or narrowly or in some other way than a literal interpretation of it would suggest."

[494] Mr Burns said that that was correct only if it was recognised that mere "engagement" of the Convention right would not in itself be enough to require the provision to be read in a Convention compatible way. A statutory provision did not become incompatible with the Convention right simply because it engaged with it in some way, but only if was read in a manner which would give rise to a breach of that right. Reference was made to Clayton & Tomlinson at paragraph 4.45, although I think this may mean 4.4A.

[495] There was nothing in Ghaidan which went so far as to suggest that section 3 had any wider application or that, absent section 3, Convention rights could be used as an aid to statutory construction in some more general way. On the contrary, as Lord Millett put it at paragraph 60:

"... The [section 3] obligation arises (or at least has significance) only where the legislation in its natural and ordinary meaning, that is to say as construed in accordance with normal principles, is incompatible with the Convention. Ordinary principles of statutory construction... will often be sufficient to enable the court to interpret the statute in a way which will make it compatible with the Convention without recourse to section 3. It is only where this is not the case that section 3 comes into play."

[496] Although Lord Millett was dissenting; his approach was consistent with the approach of the other members of the committee on that point. The first step was to determine whether the relevant statute was incompatible with the claimed Convention right, the second to pray in aid section 3 to read it down. See Lord Nicholls at paragraphs 7, 24, and 25, Lord Steyn at paragraph 39 and Lord Rodger at paragraph 106. ("Inevitably when section 3 comes to be considered by a court, the focus is on the approach which section 3(1) requires the court to adopt when reading a statutory provision that, on a conventional interpretation, would be incompatible with a Convention right.")

[497] Ghaidan demonstrated the strength of the section 3 power once the need for it arose. It did not support a proposition that in the absence of a breach of Convention rights, section 3 could be prayed in aid to require a different interpretation of it.

[498] Convention rights in the abstract were not an aid to interpretation under section 3. In order for Convention rights to have any relevance to the interpretation of section 39 the respondents had to establish that it would be incompatible with a Convention right or rights if read and interpreted conventionally. They would have to establish that on that reading, excluding as it did the power to make a rule as found in paragraph 7(3) it would be a breach of another person's article 8 rights. If not, then there was no scope for the use of section 3 and no warrant to read section 39 any differently than read by the Lord Ordinary. I was being asked to explore if third party's rights were interfered with and Mr Burns submitted that they were not.

[499] The respondents could not suggest if the first part of the message were missing that the article 8 rights of any recipient of the call or anyone else would be breached. The absence of that part of the message did not breach such a person's article 8 rights in relation to the recording or monitoring of the call. It had no relevance to that at all. Nor could it be established that the state was under a positive article 8 obligation, standing the various safeguards provided by the civil and criminal law, to provide that part of the message in order to protect potential victims of harassment or intimidation.

[500] In the circumstances, there was no reason to interpret section 39 differently from the way it was interpreted by the Lord Ordinary in order to render it compatible with recipients' Convention rights. In R(L) the competing interests were the needs of children and vulnerable adults to be protected and there was a clear potential for violation of their rights. This case had not got that far.

[501] It was said that SPS saw the need for overt monitoring in order to discourage criminal activity. The first part of the message, though, had no necessary connection with the issue of whether the surveillance was overt or covert or whether there was a requirement to warn the recipient of the call that it was being recorded.

[502] Following the respondents' argument, surveillance was overt as far as the prisoner was concerned. As far as the recipient was concerned, it was not the function of the prison to deter or discourage any criminal activity in which he might engage separate from that of the prisoner. The power to do that was not necessarily implied by section 39.

[503] The fact that RIPA recognised a distinction between overt and covert surveillance was beside the point. Mr Burns quoted section 3(1) of RIPA and said that that would appear to mean that if surveillance was overt and consented to by both caller and recipient then it was lawful.

[504] However, lawful authority could arise by virtue of section 4. That must surely relate to situations other than those made lawful by section 3(1) - for example, surveillance which was covert for one of the parties to the call - or it would be unnecessary.

[505] Thus lawful authority for the interception in the present case did not depend on whether it was overt and with the consent of both but rather arose from such scheme as might be put in place under section 39. Conduct taking place in a prison was authorised by section 4(4) of RIPA if it was conduct in exercise of any power conferred by or under any rules made under section 39 of the Prisons (Scotland) Act. That did not require the making of a rule per paragraph 7 of the Direction as a condition of compliance with section 4(4).

[506] There had been a submission that since the rules and Direction required the pre-recorded message to alert recipients of the fact of potential monitoring, the regime would not be in accordance with the law without the message. That, however, begged the question. If paragraph 7 was ultra vires then it was not law.

[507] Article 8 did not require any warning to be given and Dudley was correct to reject the contrary submission. Matters had not "moved well beyond" this. The Appeal Court was not using the issue of deemed knowledge of the law as some sort of substitute for the giving of a warning. They were not saying that if the appellant had not had deemed knowledge of the law a warning would have to have been given. On the contrary, they accepted that there was an interference with the appellant's article 8.1 rights by the recording. They raised the issue of deemed knowledge of the law in the context of whether the interference was in accordance with the law, presumably in relation to the issue of accessibility and foreseeability.

[508] The significance for article 8 of a warning or lack of it was clear from Copland. It was about whether the complaint could still be said truly to be within the ambit/scope of private life ie. whether proceeding with the call in the knowledge that it was being recorded took the recipient from the private to the public sphere and therefore outwith article 8 privacy rights altogether. There was no need in that case to examine the question of proportionality since there was no domestic law regulating the monitoring of calls at the material time.

[509] As far a threshold was concerned, the European Court had never attempted to define that it might exist. AB was an example of weighing proportionality because there were some restrictions in the use of telephones. Where was the bar to be set if Mr Moynihan was right? It was difficult to conclude on any level that the petitioner's case did not come up to that mark in the absence of any guidance. There was plainly interference with his private and family life and that needed to be justified under article 8.2.

[510] Mr Burns moved for expenses if the petitioner was successful. Mr Moynihan did not oppose that and indicated that the Ministers would not be seeking expenses if they were successful.

Discussion

[511] Needless to say I was very grateful to Mr Burns and Mr Moynihan for their presentation of the issues and in particular for their written submissions. It is clear that there are a number of issues which require to be addressed.

[512] In the first place it has to be considered whether the Direction is lawful.

[513] Assuming the relevant statute and regulations can be interpreted in such a way as to render the Direction lawful, does it nonetheless fall foul of the Convention?

[513] Would the petitioner be a victim if the Direction fell foul of the Convention?

[514] Does the Direction constitute an interference with the petitioner's Article 8.1 right? If so, can it be justified under Article 8.2?

[515] It seems to me, with respect, that Mr Moynihan's submission that Mr Burns was in some ways attempting to reargue a submission which failed before the Inner House was correct. I refer to the suggestion that somehow section 3 of the Human Rights Act 1998 was not engaged. In my opinion that argument cannot succeed, having been foreclosed by the decision in the Inner House and in any event being, I think, contrary to the other authorities which were cited on this point. The issue for me is to determine whether, on the facts, there is an objective need for the measure in question.

[516] In my opinion, a number of objective needs were identified in this case and some of them were clearly in tension with others. There is the need to preserve order and discipline in prisons, the need to prevent disorder or crime (and by that I include bullying in prisons) and the need to protect the rights and freedom of others. It will be seen that this language is, to all intents and purposes, the language of Article 8.2 of the Convention. I am not dealing with that Article as such at the moment but the same sorts of considerations will apply at various stages of this analysis. Needless to say there is also an objective need to rehabilitate prisoners and to enable them to maintain contact with their families and friends.

[517] These sorts of considerations have been recognised in other countries. I have had regard to the evidence of Professor Coyle about what happens in the likes of Spain or Ireland and England and indeed, at this point, I should say that generally speaking I found all the evidence to be credible and reliable, except for one or two matters which I will discuss later.

[518] The issue in relation to the witnesses other than the petitioner related not to their credibility or reliability but rather to the extent to which such conclusions as they drew were justified and what weight could be placed on their opinions. There was no dispute as to the general factual background. Furthermore, it is quite clear on the evidence that the numbers allocated to prisoners are not pre-approved as the PAN acronym implies and that facilities for correspondence exist in Scottish prisons quite apart from the provision of telephones.

[519] SPS clearly regard the rehabilitation of prisoners and the maintenance of contact between them and their families and friends as a priority. On the other hand it has to manage the prison population. As a public authority, it seems to me that they owe duties also to persons outwith the prison, if they might be affected by the activities of the prisoners. In this regard, Mr Moynihan's analogy of a bomb being lobbed over a prison wall, while perhaps somewhat extravagant, was, nonetheless a sound one, in my opinion.

[520] Furthermore, the maintenance of good order and discipline within the prisons does, I think, inevitably involve some degree of control over people outside to stop them from encouraging prisoners to misbehave or from bringing prohibited articles into the prison.

[521] It therefore seems to me to be necessary to exercise some control over the use to which telephones are put. That control is exercised in different jurisdictions in different ways, as can be seen from the evidence and report from Professor Coyle.

[522] It is plainly necessary, in my view, that the prison authorities be able to monitor and record telephone calls for the purposes of the prevention of disorder and crime but in particular for the discipline and control of persons required to be detained therein in terms of section 39(1) of the Prisons (Scotland) Act 1989.

[523] I did not understand it to be disputed that this is the case. It was not disputed, as I understand it, that the surveillance operated by SPS was intended to be overt rather than covert. In any event, that that is so can be seen from the notice which advises prisoners of the fact of monitoring and recording etc.

[524] That intention would, however, be frustrated if the surveillance were covert in relation to the recipient of the call. While no doubt authorisation could be sought and given in appropriate cases for covert surveillance, that would, it seems to me, require to be justified. I do not consider that blanket covert surveillance would be justified or proportionate.

[525] The undisputed evidence, which I accept, was that there were around two million calls from Scottish Prisons per annum. Obviously many of these calls will be to the same recipient, but I think it legitimate to infer that there will be tens if not hundreds of thousands of different recipients of calls each year. Each of them has, in my opinion, a legitimate expectation of privacy. That follows from the Copland case. See also the case of Halford.

[526] In my opinion the case of Dudley v HMA does not detract from that proposition. In the first place the appellant knew that the telephone call in question was made by a prisoner from a prison. She was deemed to know of the surveillance regime. In essence that is the whole point of this application.

[527] In the second place, there is no exact correlation between a breach of article 8 for example, and the admissibility of evidence obtained as a result.

[528] It does not seem to me that Dudley is of any particular assistance standing Mr Burns' proper concession that the logging and recording of information about telephone calls is an interference with the article 8 rights of the two persons involved. See PG & JH v The United Kingdom, Peck v The United Kingdom and Copland v The United Kingdom.

[529] In my opinion it is quite clear that, while on occasions covert surveillance would be justified, that would not be the case in the vast majority of cases. The significant number of calls made from prison shows that there are a significant number of recipients whose article 8 rights would be infringed were they not made aware of the fact of the surveillance. They would thus at the very least require to be told of this surveillance.

[530] That, in my view, would not be enough however. There would be little point in advising someone that their calls were being logged, recorded and perhaps monitored without telling them who was doing the logging etc. I am not entirely convinced by Mr Duffy's suggestion that there would be anything particularly chilling about such a message but, in my opinion it would be necessary to know who is conducting the surveillance for the warning about it to be informative to any useful degree.

[531] On this basis alone, I consider that there is a pressing objective need for the message and that section 39 has to be construed in a way which allows for its imposition in the telephone calls.

[532] I do not think that the matter stops there, however.

[533] I was impressed with the affidavit from Mhairi MacFarlane McGowan, the co-ordinator of ASSIST. She had worked for 10 years as a support and development worker with Greater Easterhouse Women's Aid in Glasgow before joining ASSIST. She was aware of prisoners making unwanted telephone calls to the victims of their domestic abuse and violence. A number of women had stated to her that the message provided them with an opportunity to decide how to deal with unwanted calls. One third of women experienced ongoing harassment after a relationship had ended. The message allowed women to know who the call was from and give them a brief window to decide whether they wanted to receive it. If they hung up before hearing the prisoner, they could blame the hang up on the technology or some other factor and that made a huge difference to women living with domestic abuse. The call barring system might not be an attractive option for them because the prisoner might find that the number had been barred by them.

[534] While the affidavit was somewhat general in its terms, it was clear evidence of what seemed to me to be a pressing need to protect women in that situation. The message was necessary to give them additional protection in the circumstances outlined by Ms McGowan.

[535] Victoria Louise Kerr, the social worker with the domestic violence probation project of the City of Edinburgh Council, is also an experienced social worker. She only spoke of 19 cases and of these only three women had encountered the message but they found it very useful. Her evidence again led support to the suggestion that the message was necessary.

[536] It seemed to me that the affidavit from Dr Loucks and the evidence from Professor Coyle only looked at the matter from the point of view of the prisoner. There was little informed discussion of the Convention rights of third parties and it was not demonstrated to me that there was any detailed knowledge of the current operational demands of SPS or any appreciation of the current volume of phone usage or availability of resources. Professor Coyle was not able to explain in any detail how the sampling of calls worked in England and Wales. His understanding of the PAN nomenclature was also flawed. I preferred the evidence of Mr Duffy and Mrs Sweeney, who had in-depth current knowledge of the system in Scotland and a wealth of experience in Scottish prisons.

[537] I appreciate that the vast majority of prisoners will not engage in conduct of this kind. However, I thought that there was much force in the evidence from Mr Duffy in particular and Mrs Sweeney that identification of those prisoners who might cause problems was particularly difficult. The information which prisons have is not always full and will not contain details of domestic arrangements or indeed full details of the offence for which they are incarcerated. That problem is particularly acute where prisoners are on remand. I accept the evidence of Mr Duffy and Mrs Sweeney as to the numbers of prisoners in and admitted to the system each year. It would not really be possible in practical terms to separate the wheat from the chaff. In my opinion, having regard to the difficulties expressed by these witnesses, which I accept exist, the message is a proportionate response to the problem. This is a matter which will arise later, of course, but in view of these difficulties, I think that the message can be regarded as necessary.

[538] Criticism was made of the blanket approach but when one examines the systems in England and Ireland, I can see that they encounter the same problems but tackle them in a different way. In England, most of the prisoners are on a call enabling system with a sample being monitored but responsibility for advising the recipient of calls that the call is coming from a prison is left to the prisoner. I accept that that system was formerly in use in Scotland and was abandoned because Scottish prisoners did not pass on the information. The English and Welsh seem to recognise that this information has to be imparted to the recipient.

[539] In Ireland there is a different approach but the prisoner can only telephone a limited number of people who will, in view of the way the system works, know that he is calling them from a prison.

[540] It goes yet further. Whilst Mr Duffy's evidence was criticised by Mr Burns as being little more than an assertion, I accept that his experience in the prison service entitled him to make educated predictions about the sort of behaviour which could be expected were a limited number of prisoners to be given different treatment in relation to the use of the phone. One would expect bullying and exploitation. Mrs Sweeney gave an example of the sort of thing which can happen in relation to methadone and I think that in any event it stands to reason that this sort of behaviour would go on. The prison service is in my opinion entitled to try to prevent that and the blanket approach is necessary.

[541] The evidence led for the petitioner falls into the same trap as the submissions made on his behalf. In other words it looks at the problem only from his point of view. I am satisfied that there is a pressing social need for the message and therefore the legislation has to be construed in such a way as to render the Regulations and the Direction ultra vires. I do not think that the fact that there is now no discretion in prison governors makes any substantial difference. The existence of other remedies, such as criminal sanctions for abuse of the phone, do not seem to me to matter. In the first place, they do not deal with the question of the privacy of the recipient. Secondly, they can only operate after the event. It is better to deter such conduct rather than to deal with it retrospectively. Thirdly, a request to have a call barred would inevitably, in my opinion, be traceable by the prisoner back to the complainer. I refer again to the affidavits of Victoria Louise Kerr and Mhairi McGowan.

[542] I am not persuaded that the fact that the contents of the Direction were not debated in Parliament is of any significance. If there is any interference with the petitioner's Article 8 rights it is not on the same level as the deprivation of a right to vote and in my opinion it was unnecessary for the Direction to have been the subject of Parliamentary scrutiny.

[543] Having answered that question, I now turn to the others. Assuming the Direction and the inclusion of the message to be "according to law" is there nonetheless a breach of the petitioner's rights under Article 8.1?

[544] Would he be a victim, assuming a breach could be established?

[545] On the hypothesis that there was an interference with his article 8.1 rights, I would answer that question in the affirmative. I am not much swayed by the evidence that he made a number of complaints about different aspects of the telephone system. Neither do I attach much weight to the fact that there have been hardly any complaints about the system. I accept the evidence of Professor Coyle that prisoners will simply get on with things.

[546] Mr Burns was, it seems to me, entitled to look to hypothetical cases in order to test his argument, but nonetheless, since this is not an actio popularis, he had to demonstrate that the petitioner was a victim. I have paid regard to his evidence and to that contained in the affidavits which were submitted on his behalf. I have some difficulty with the evidence about his son. It is not at all clear to me how his complaint relates, from the point of view of timing, to the revelation to his son that he was a prisoner. The evidence in that regard is incoherent. I do not quite understand how the child, if he was brought to prison, would not know that his father was a prisoner and there seemed to me to be a number of discrepancies between the account given in evidence and that given in the affidavit. That is not decisive of the matter however. I accept the evidence contained in the affidavits from his brother and from Mr Docherty about the difficulties which the message could call. I am not persuaded that the message has caused any difficulties vis-à-vis the petitioner's ex-wife's new partner. I agree with Mr Moynihan that even without the message the phone would be hung up before the petitioner could speak to the children. Furthermore, as I will mention later, I do not think that the message is in any real sense a reminder of the petitioner's situation, either for him or for others. However, there is no reason for me not to accept the rest of the petitioner's evidence about the effect of the message. In my opinion he could properly claim to be a victim, assuming there had been any unlawful interference with his Article 8 rights..

[547] I turn now to that question. Has there been any interference with the petitioner's Article 8.1 rights?

[548] This is a question which caused me some difficulty. As has been seen, a great many authorities were cited to be dealing with the question of whether a particular sear of activity fell within the "ambit" or "scope" of article 8(1). Of most significance perhaps are the cases of Petrovic, AB v The Netherlands, M v Secretary of State for Work and Pensions and RD.

[549] Mr Burns suggested that there was no minimum level below which interference had to fall before it could probably be so called. I think I prefer to consider whether a particular measure has a direct impact upon article 8.1 rights or whether its impact is somewhat tangential and indirect. It seems to be that that is the sort of approach which was followed by the House of Lords in M. It must also be remembered that the right under Article 8 is a nuanced or sophisticated one, as was pointed out by Lord Walker of Gestingthorpe. As he put it,

"...the right conferred is a right to 'respect' for one's private and family life and one's home and correspondence; not a right to privacy or to family life or to a home"

[550] I read the case of AB as indicating that there is no right to the use of a telephone and that failure to provide a telephone to a prisoner would not breach article 8.1, albeit that it might impinge on the prisoner's ability to contact his family. That always presupposes that there is some other means of communication available, which is plainly the case here. Quite apart from letter writing, the evidence disclosed that the office phone could be used in emergencies and the petitioner has access to visits. In M, the question was whether the scheme, which treated heterosexual and same sex couples differently, breached Article 14. That Article had no independent existence since it had effect solely in relation to the enjoyment of the other rights and freedom safeguarded by the Convention. There could be no room for its application unless the facts of the case fell within the "ambit" of one or more of these.

[551] As I understand it, Mr Burns suggested that the provision of the telephone with the conditions attached was one of the "modalities" by which SPS gave effect to the prisoner's article 8.1 rights. That may be so to some extent, but the conditions attached which are said to be the interference with that right, seem to me only tangentially to affect it. They are designed for the purposes to which I have already referred and in as much as they may impinge upon the article 8.1 rights of the prisoner, that impact is, in my opinion, tenuous. I do not regard the conditions as an interference with the right. I accept the submission of Mr Moynihan that any interference is at a very low level and that is also a relevant factor, as I read M, in deciding whether a provision, which may fall within the "ambit" of a right in fact has so strong a link with it that it can be said to amount to an interference with it in any real sense. I think that the attachment of the message, which does not impinge on the substance of the phone calls, and whose "chilling" effect can be got round by making arrangements to call at specified times, is akin to the provisions under attack in RD and accordingly it does not amount to an interference. The circumstances here come nowhere near those in Ciapas.

[552] On a more fundamental level, however, and far from being an interference with the petitioner's Article 8.1 rights, the provision of the telephone with the conditions attached is an example of SPS giving effect to those rights. They did not require to provide a telephone but they did so, albeit with conditions attached. In my opinion this is a glass half full rather than a glass half empty, to use Mr Moynihan's analogy. I read the passage in AB v The Netherlands, at paragraph 93, as proceeding upon a hypothesis which is effectively negatived by the preceding paragraph.

[553] I repeat that the case of RD has certain similarities with the present case. In that case the pricing structure might well have had an adverse impact on the prisoner's ability to communicate with his family and friends but that did not fall to be regarded as an interference with his article 8.1 rights.

[554] In the event that I am wrong about this, I have to consider whether, assuming there is an interference with the petitioner's rights, it can be justified under Article 8.2. There can, I think, be no doubt that the aims of maintaining order and discipline in prisons, the prevention of exploitation and bullying therein, and the protection of the legitimate expectations of privacy of recipients of calls, are legitimate aims. Are the measures proportionate?

[555] I have already, I think, looked at the question whether a blanket approach was justified and I reach the same conclusion under this heading. It might be argued that if the measures do not work at all, then there is little point in having them since they adversely impact on the petitioner's rights. The statistics can be somewhat misleading but I read them as showing that the existence of the message actually works. The hang-up rates are impressive when compared with hang-up rates from other organisations. There is a limited amount of information available from the statistics about the number of threats made etc. As a proportion of the total number of calls made in any one year they do not amount to a great deal. However, they do show, I think, that this kind of activity does go on. The fact that the monitoring is overt allows people to know that their calls will be listened to and can self-evidently act as a deterrent albeit the statistics show that some people nonetheless engage in criminal activity. It is likely that since only some of the calls are monitored the actual numbers of prisoners and recipients engaging in such an activity are greater. It is plain that the message does not work for everyone but that is no reason to discard it. I accept Mr Moynihan's submissions in this regard.

[556] Generally speaking, I agree with Mr Moynihan that the way in which to control the problems identified by SPS, which, on the evidence of Mr Duffy and Mrs Sweeney, I accept exist, is within what in international terms might be described as their margin of appreciation. Precisely the same problems appear to exist in the other jurisdictions to which Professor Coyle referred, but their solutions seemed to me to carry the same consequences which the petitioner wishes to avoid. The English system appears to proceed on the basis that the prisoner will alert the recipient of calls to the fact that he is in prison and the Irish system will have alerted the recipient before any calls are made to them, to see if their numbers may be added to the list.

[557] The regulation of prisoners is a matter of great importance. The SPS have operational knowledge of what goes on in prisons and I accept the evidence that bullying and exploitation are likely to result from a system which discriminates between prisoners as to their use of the phone. The interference, if such it be, with a prisoner's article 8.1 rights, is marginal at best. Arrangements can be made to make calls at specific times, as has been done in the petitioner's case. I see no reason why he could not corresponded with the school in writing. The suggestion that the message acts as a reminder either to him or to the recipient of the call that he is in prison is entirely baseless in my opinion. I agree with Mr Moynihan that this is not a reminder of some long forgotten event. The prisoner cannot but be aware during every waking hour where he is and I find it difficult to envisage that at least for the most part, his family and friends do not know where he is. Doubtless he will constantly be asked how he is coping and told that he is being missed. If there are other people whom he wishes to contact, who do not know that he is in prison, he has the option of writing to them or making arrangements for someone else to answer the phone in the first instance. I hold that if there is interference with the petitioner's Article 8.1 rights, such interference is proportionate.

[558] I regard it as an operational matter for SPS. They are entitled in my opinion to have regard to the resource implications of the risk assessment and to the fact that enquiries might breach the Article 8.1 rights of persons outside the prison.

[559] I do not consider that substitution of the prisoner's name for that of the prison would assist. That would not tell the recipient, even if it was indicated that the call was being recorded, logged and possibly monitored, who was doing it.

[560] I do not think it necessary for me to deal in detail with Mr Moynahin's submission about the passage of time. Suffice it to say that, had I been with the petitioner, I would not have held that that was a factor which would have prevented him from obtaining the remedies which he seeks. The case of King was entirely different in its circumstances. In the current case, the petitioner has not sought to move the goal posts and the delay was substantially due to difficulties in obtaining legal aid. Furthermore, this case does not involve the sort of administrative uncertainty or vested interests which were involved in King.

Decision
[561] In the result I repel the petitioner's pleas in law. I regard the respondents' first plea-in-law as superseded. The petitioner has not made out all of his averments of fact and I sustain in part the respondents' second plea-in law. I sustain their third and fourth pleas-in-law and refuse to make the orders sought. I find no expenses payable to or by either party.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Potter (AP) v The Scottish Ministers [2010] ScotCS CSOH_85 (06 July 2010) URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH85.html Cite as: [2010] ScotCS CSOH_85, 2010 GWD 25-481, 2010 SLT 779, [2010] CSOH 85

Scottish Court of Session Decisions