Life prisoners in separate institutions lose challenge against prohibition of inter-prison phone calls

It was argued by the Scottish Ministers that the petition of Charles O’Neill and William Lauchlan was time-barred and dismissed on that basis. The petitioners, who claimed to be in relationship with each other, challenged the decision as being in violation of their rights under Article 8 of the ECHR.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Tyre. Leighton, advocate, appeared for the petitioners and Reid, advocate, for the respondents.

Facilitating case work

The petitioners were both sentenced to life imprisonment for murder in 2010, with minimum terms of 30 and 26 years, and imprisoned in separate institutions. They maintained that, at the time of both the offences and conviction, they were in a relationship which continued subsequent to their imprisonment. In 2014, a petition challenging the Scottish Ministers’ decision to refuse them inter-prison visits also based on their ECHR rights was refused.

During the course of the 2014 petition proceedings, the petitioners were permitted inter-prison calls. This privilege was not initially terminated following the conclusion of proceedings, which the respondents claimed had been an “oversight” as the calls were only permitted to facilitate case preparation work. The petitioners’ call privileges were eventually withdrawn in August 2018.

The petitioners, who claimed the Scottish Prison Service had treated the calls as being between “near relatives”, first requested reinstatement of the calls in September 2018. The SPS rejected the complaint on the grounds that the relationship between the petitioners was potentially dangerous and there was a risk the calls would be used as a means of orchestrating offences.

The petition was presented to the court in February 2019. The Lord Ordinary concluded that, as the grounds giving rise to the petition had first arisen in August 2018 and section 27A of the Court of Session Act 1988 stipulated a three-month period beginning from the date on which the petition grounds arose, it had not been presented within the relevant time limit, and there were no equitable grounds for an extension.

It was submitted for the petitioners that the violation of their Article 8 rights was ongoing, and the effect of this was that the three-month period would not commence until that breach ended. Alternatively, the Lord Ordinary had erred in refusing to exercise his discretion under section 27A(1)(b) to allow the petition to proceed out of time.

Entirely inconsistent

The opinion of the court was delivered by Lady Dorrian, who said of the time limit: “The essence of the petitioners’ argument is that in the circumstances of a case such as the present, there is no time limit for bringing judicial review proceedings. [Counsel] frankly submitted that such proceedings could be brought even if the circumstances in question had persisted for 5, or even 10, years. This is entirely inconsistent with the mischief at which the legislation was directed.”

She continued: “As to the argument that the existence of an ongoing complaint to the SPSO prevented the commencement of the time bar provisions, and that, until that complaint was disposed of, it could not safely be assumed that proceedings by way of judicial review would not be premature, that argument is untenable. Even on the petitioners’ own note of argument it is acknowledged that the SPSO could not oust the jurisdiction of the court, and that the complaint route did not provide an alternative remedy.”

Addressing whether the Lord Ordinary was correct in refusing to exercise his discretion, Lady Dorrian noted: “The Lord Ordinary addressed the circumstances of the case, the fact that the petitioners have known about the decision from 17 August 2018; that they took steps to challenge it from very shortly thereafter; and the absence of any reason for delay. He might also have noted that no point of general public importance arises, it being specifically advanced on behalf of the petitioners that the case relates only to the two petitioners and that no wider application appears.”

She concluded: “Moreover, he would have been entitled to bear in mind that similar article 8 arguments, based on the alleged relationship between the petitioners, were advanced but roundly, indeed robustly, rejected by the Lord Ordinary in the proceedings relating to the similar issue of inter-prison visits between the petitioners. In short, none of the factors advanced by the petitioners persuades us that the Lord Ordinary erred in refusing to exercise his discretion.”

The petitioners’ reclaiming motion was therefore refused.