Inmate fails in human rights challenge to prison officer’s confiscation of card ‘containing drugs’

David Gilday claimed his human rights had been breached after prison officers seized a greeting card addressed to him, but a judge in the Court of Session ruled that the authorities had acted lawfully.

The petitioner, who is currently serving a number of sentences of imprisonment, amounting in cumulo to 18 years and five months in HMP Addiewell for various of offences including attempted murder, is due to be released on 1 February 2024 although the Parole Board for Scotland is set to review his case in August 2020.

Lord Pentland heard that the petitioner raised judicial review proceedings against the Scottish Ministers, complaining about the interception by Scottish Prison Service staff of a “greeting card” sent to him while he was previously a prisoner at HMP Glenochil, after a drug search dog detected the presence of an “illicit substance”.

‘Unwarranted interference’

The petitioner was seeking a declaratory order that the seizure and retention of the card constituted an “unwarranted interference” with his rights under Article 8 of the European Convention on Human Rights (ECHR), which provides that everyone has the right to respect for his private life and correspondence, and that any interference with this right by a public authority must be in accordance with the law and necessary in a democratic society for the prevention of disorder or crime.

The petitioner claimed in an affidavit that it was not unusual for him to receive greeting cards in prison - not just on his birthday or at Christmas - because his friends would send them to him with a view to trying to keep his “spirits up”.

The court was told that in March 2019 three items of mail addressed to him were delivered to the prison, but issue was taken with one of the items and a prison officer took the card to security.

According to the petitioner, the card was not placed on a lightbox for the purpose of testing whether it contained any illicit substance because it was broken.

The petitioner, who accepted that he had issues with substance misuse, submitted that the prison authorities had “no proper grounds” for confiscating the card and refusing to return it to him. 

The correspondence had apparently been removed and retained on the basis that it was suspected of being tainted, not that its contents were in any sense objectionable. 

In those circumstances, while the petitioner acknowledged that the removal of the physical item of correspondence might be legitimate and proportionate, steps ought to have been taken to permit him to have access to the contents of the correspondence. 

The petitioner claimed that the removal of his correspondence, coupled with the failure on the part of the SPS to put in place a mechanism whereby he could be made aware of its contents, amounted to a “disproportionate interference” with his Article 8 rights. 

‘Reasonable grounds’

But the respondents maintained that the SPS had “reasonable grounds” for believing that the card was impregnated with a psychoactive substance, and that they were therefore entitled in terms of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 to seize and retain it until the petitioner’s departure from prison.

The petitioner had a “history of drug use” and of being involved in drugs while in prison, and most commonly drugs would be contained “laced” within items such as cards, letters, children’s drawings and clothes.

The respondents argued that seizure of the card was “justified and reasonable” because there were grounds to believe that it contained drugs.

Whatever the position was with regard to whether the lightbox, there could be no doubt that the drug search dog detected an illicit substance on the card, a crucial piece of factual evidence which the petitioner was not in a position to dispute and which formed a “good basis” upon which to seize the item.

The respondents also submitted that continued retention of the card was “reasonable and proportionate” in the circumstances, as the drug could not be disaggregated from the card, which was the means by which it was intended to introduce the illicit substance into the prison estate.

There was therefore “no justification” for returning it to the petitioner before his release date because in constituted “unauthorised property”.

‘Legitimate aim’

Refusing the petition, the judge ruled that the petitioner’s claim was “unfounded”.

In a written opinion, Lord Pentland said: “Assuming in the petitioner’s favour that his rights under Article 8 of the ECHR were engaged by the seizure of the card, I consider that such interference was justified for the prevention of disorder or crime and for the protection of health or morals. In my opinion, the information put before the court in the present case shows that the seizure and retention of the card were (and continue to be) reasonable and proportionate steps for the SPS to take (and continue to take). 

“These measures pursue a legitimate aim, namely taking steps to prevent illicit substances from entering and then circulating within the prison estate. It is well known that drugs cause many difficulties in Scottish prisons. Psychoactive substances present particular challenges for the SPS. Against this background, I do not consider the steps taken in relation to the card to be disproportionate to the achievement of the legitimate aim to which I have referred.

“It seems to me that, on the basis of the documentary evidence and the explanations tendered to the court on behalf of the respondents, the court should be satisfied that the card tested positive for drugs when the drug search dog was used.

“The petitioner is not in a position (nor does he seek) to dispute the key factual information concerning the use of the drug search dog and the positive finding. That being the case, the SPS had sufficient grounds to treat the card as an item of unauthorised property and to seize it.

“As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”

He concluded: “In my opinion, the petition is unfounded. There were adequate grounds for the decisions taken in relation to the card by the SPS. I do not consider that there has been any disproportionate interference with the petitioner’s Article 8 rights. 

“The steps taken by the SPS were appropriate and justified. I shall accordingly sustain the second plea-in-law for the respondents, repel the petitioner’s plea-in-law and refuse the petition.