Prisoner granted permission to challenge refusal of escorted day absence to see ill grandmother

The petitioner and appellant, S, used to be visited regularly by his grandmother, M, but she was no longer able to travel to see him via video-conference due to dementia. The Scottish Ministers appeared as respondents, with a public interest intervention by the Commission for Equality and Human Rights.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Woolman, and Lord Doherty.

Not dangerously ill

The petitioner was given a life sentence with a punishment part of 33 years, and at the time of the appeal was in custody at HMP Shotts. Until about 2017 M used video-conferencing facilities made available by the Scottish Prison Service in Helensburgh to contact the petitioner, although she was noted as becoming upset during telephone calls because she was unable to see him.

In February 2018, the petitioner was granted EDA to visit his grandmother. In approving this EDA, the deputy governor observed that M was not so dangerously ill as to meet Scottish prison rules for granting leave under Rule 101(a), but it was approved exceptionally under Rule 101(c) “on this occasion only.” Leave was also granted under Rule 101(a) in August 2018 when M was in hospital.

A further application for EDA was made in early 2019. A letter from M’s GP to the SPS indicated that M was seriously ill, but the letter was referred to as “unclear” in comments on the application. The Deputy Governor refused the application on the basis that no evidence was given that supported it.

Another application in July 2019, accompanied by a letter indicating that M was not dangerously ill but was not able to travel to HMP Shotts or another prison nearer her home was also refused by the Deputy Governor on the grounds that being too ill to travel was not a reason for EDA approval.

The petitioner sought reduction of the May and July 2019 decisions, along with declarator that they were in breach of article 8 of the ECHR. He also maintained that the respondents had failed to comply with the public sector equality duty under the Equality Act 2010.

In March 2020, the Lord Ordinary refused permission for the petition to proceed. He was not persuaded that the petitioner’s ECHR rights were engaged or that the petition had a real prospect of success. Further, no purpose would be served by reducing the decisions as the petitioner could apply for EDA at any time, as he had done successfully in January 2020.

On appeal, it was submitted that the EDA grounds had difficulty in continuing scenarios such was when a near relative was disabled. A one-off approach precluded a proper proportionality assessment. The petition therefore raised matters of ongoing practical relevance to the petitioner and to other prisoners with disabled relatives.

In its intervention, the Commission submitted that the proceedings raised important issues about the effect of the PSED in policy formulation by public bodies as well as the proper approach to the ECHR rights of prisoners. The refusal to EDA to visit an ailing relative constituted an interference with a prisoner’s article 8 rights taken together with article 14 rights.

Significant difficulties to overcome

The opinion of the court was delivered by Lord Doherty. Noting that the court was only required to consider whether the application had a real prospect of success.

He began: “We are conscious that we have had advantages which the Lord Ordinary did not have.  We have had the benefit of oral submissions and of fuller written submissions (including those lodged by the Commission).  However, in our view this is not the time for detailed analysis of the competing arguments.”

He continued: “There are significant difficulties which the petitioner will have to overcome if he is to succeed, but our judgment is that it would be going too far too fast to hold at this stage that those difficulties are insurmountable.  Likewise, in view of the range of remedies which the petitioner seeks, we think that it would be precipitate to say that success would have no practical consequences for him (or for other prisoners who may be affected by similar circumstances).”

For these reasons, the appeal was allowed, with the petition granted permission to proceed.