Paedophile life prisoners fail in legal challenge against decision to ban telephone calls between them

Partners Charles O’Neill and William Lauchlan claimed they should be treated as “near relatives” and argued that the withdrawal of permission to make calls to each other “breached” their human rights, but a judge in the Court of Session dismissed the action after ruling that their petition for judicial review was “time-barred”.

‘Near relatives’

Lord Brailsford heard that O’Neill and Lauchlan were sentenced to life imprisonment with minimum terms to 30 years and 26 years respectively after the pair were found guilty in 2010 of the murder of Allison McGarrigle in 1997, the couple having previously been convicted of a series of child sex offences.

In 2015 the petitioners, who were detained in different jails, raised judicial review proceedings complaining that their “right to respect for family life” in terms of article 8 of the European Convention on Human Rights (ECHR) had been “violated” and that they were the victims of “discrimination” because the Scottish Prison Service refused to arrange inter-prison visits for them to see each other, but Lord Stewart refused the petition in a decision which was upheld on appeal.

In the present proceedings against the Scottish Ministers they sought reduction of a decision to withdraw permission to telephone each other; declarator that they ought to be treated as near relatives for the purpose of an SPS policy in relation to telephone calls by prisoners; and declarator that in banning them from phoning each other the respondents had breached their Article 8 rights.

The court was told that prior to raising these proceedings, and indeed at the time of the proceedings which gave rise to the decision of Lord Stewart, the petitioners had been allowed inter-prison telephone calls between each other.

The petitioners alleged that this facility was permitted because they were treated by the SPS as “near relatives”, but this assertion was denied by the respondents, who claimed that telephone calls between the petitioners were permitted to enable legal preparations in relation to litigation they were parties to.

It was however conceded by the respondents that the phone calls between the couple were allowed to continue after the conclusion of the judicial review proceedings in 2015 “by mistake”.

This mistake was eventually recognised three years later and the SPS made the decision to withdraw permission on 17 August 2018, following which the petitioners were each informed that they would no longer be afforded the facility of inter-prison calls.

Complaints to the SPS were dismissed on 4 and 26 October 2018, as was a subsequent complaint to the Scottish Public Service Ombudsman (SPSO).

‘Legitimate expectation’

The pair sought judicial review of the decision and presented a petition on Valentine’s Day 2019, but the respondents lodged a time-bar plea.

The petitioners’ position was that the date on which the grounds giving rise to the petition first arose was 15 November 2018, which would mean that the petition was presented timeously.

Although it was accepted that they were aware of the decision on 17 August 2018, and that their complaints were dismissed on 4 and 26 October, they claimed they only had received formal intimation on 15 November 2018.

It was also submitted that it was incorrect to take account of particular factors as determinative of a date when a right of challenge came into existence, and that the appropriate analysis was that there was scope for “a new challenge every day” because the “unlawful act” was continuing.

The petitioners further argued that they had a “legitimate expectation” that the respondents would not rely on the time-bar plea, because during the SPSO complaints process – which was finally dismissed on 9 April 2019 – the respondents said the SPSO was the last stage of the prison complaints process, meaning judicial review was not competent until that process was complete and the respondents were therefore “barred” from now insisting in a time-bar plea.

The final argument on behalf of the petitioners was that if the petition was otherwise time-barred it was nonetheless “equitable” to permit it to proceed, as there was a “public interest in holding the respondents to account” in relation to their change of position.

The respondents’ position was that the operative decision in relation to the removal of inter-prison telephone calls between the petitioners took place on 17 August 2018, which failing 4 October 2018 in respect of O’Neill and 26 October 2018 in relation Lauchlan – all of which were outwith the three-month time limit stipulated in section 27A of the Court of Session Act 1988.

‘Time-barred’

Dismissing the petition, the judge ruled that the grounds giving rise to the application first arose on 17 August 2018.

In a written opinion, Lord Brailsford said: “In relation to the date when the court can be satisfied that ‘… the grounds giving rise to the application first arise’ I consider the position to be clear. I do not accept the characterisation of the situation in the present case as a continuing act.

“A decision whereby that which was previously permitted and facilitated is disallowed and not facilitated is an act. No doubt the effect of that act continues thereafter but the act has occurred as an event, independent of the consequences.

“The petitioners were permitted inter-prison telephone communications between each other and this facility was terminated on 17 August 2018. As a simple matter of fact they were not afforded inter-prison telephone communication after that date.

“I am however prepared to accept that they would not be aware of such a situation in the context of the intention of the respondents until the decision had been communicated to them. On the basis of the documents produced to me and to which I have already referred it seems plain that the intention of the respondents was communicated to them on the day the decision was taken, that is 17 August 2018.

“Lest there is any doubt about that matter I would draw attention to the fact that there were plainly complaints about the withdrawal of telephone communication between them made to the SPS culminating in the letters of 4 and 26 October2018.

“Having regard to the foregoing my view is that for the purposes of section 27A of the said act of 1988 time began to run on 17 August 2018 that being the date when they were aware of the grounds which have given rise to this petition.”

The judge rejected the argument that the respondents were barred from insisting on a time bar plea on the complaint to the SPSO was an alternative remedy, as the SPSO jurisdiction is “entirely separate and independent from that of a court of law”.

Lord Brailsford also dismissed the argument that the fact the petitioners had been allowed inter-prison telephone communications had created a “legitimate expectation”, describing it as “fallacious analysis”.

Nor did he consider that there was any basis for exercise of the equitable jurisdiction of the court to permit the petition to proceed out of time.