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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Potter v. The Scottish Ministers [2007] ScotCS CSIH_67 (21 August 2007)
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Cite as: [2007] CSIH 67, [2007] ScotCS CSIH_67

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord Nimmo Smith

Sir David Edward, Q.C.

 

 

 

 

 

[2007] CSIH 67

P2183/06

 

OPINION OF THE COURT

 

delivered by THE LORD PRESIDENT

 

in

 

RECLAIMING MOTION

 

in

 

PETITION

 

of

 

STEWART POTTER (Assisted Person)

Petitioner and Respondent;

 

against

 

THE SCOTTISH MINISTERS

Reclaimers and Respondents:

 

_______

 

 

Act: O'Brien, Q.C., Delibegovic-Broome; Balfour & Manson LLP. (for Taylor & Kelly, Solicitors, Coatbridge) (Petitioner and Respondent)

Alt: Moynihan, Q.C., Crawford; Office of the Solicitor to the Scottish Executive (Respondents and Reclaimers)

21 August 2007

 

The petitioner

[1] The petitioner (the respondent in this reclaiming motion) 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 statutory provisions

[2] The Prisons (Scotland) Act 1989 (as amended) provided by 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;

(c) the conditions applicable to the use of such a telephone; and

(d) the logging, monitoring and recording by any means by an officer of

telephone calls made by a prisoner.

... "

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 -

...

(c) which is incidental or supplementary to the purpose in respect of which

the direction may be given."

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 ("the Direction"). In terms of paragraph 1(1) the Direction came into force on 11 August 1999. Paragraph 1(3) defined certain expressions in the Direction, including "PIN number phone" as meaning

"a telephone for the use of prisoners which is operated by the insertion of a prisoner's individual PIN number and an approved telephone number which is connected to an authorised outside network which has a remote isolator switch and access point for logging and monitoring equipment".

Paragraph 6 of the Direction provided:

"(1) The following provisions of this paragraph shall apply to the use of a PIN number phone by a prisoner.

(2) The use by a prisoner of a PIN number phone shall be subject to the further conditions specified in paragraph 7 of this Direction.

(3) A prisoner shall be permitted to make telephone calls to a maximum of 20 telephone numbers approved by the Governor.

(4) The Governor shall not approve as a telephone number a number to which a prisoner would or could be prohibited from making telephone calls by virtue of paragraph 5(4) in the case of a card phone and, accordingly, in considering whether to approve telephone numbers the Governor shall have the same powers as he would have under paragraph 5(4) in the case of a card phone.

(5) A prisoner may apply to the Governor for approval of a change of one or more of his approved telephone numbers and the Governor shall consider any such application as expeditiously as possibly.

(6) A prisoner shall not tamper with or damage any PIN number phone.

(7) Where a prisoner uses a PIN number phone, he shall be deemed to have given his prior consent -

(a) to the logging, monitoring and recording of any call made as

mentioned in paragraph 7 of this Direction; and

(b) in terms of the Interception of Communications Act 1985, to any

interception of any call within the meaning of that Act.

(8) 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."

[4] Paragraph 7 made detailed provision for the logging, monitoring and recording of calls made from telephones.

[5] Paragraph 5(4) provided:

"A prisoner shall be prohibited from making telephone calls -

(a) to telephone numbers beginning with the figure '1';

(b) to the number 999;

(c) to telephone numbers beginning with the code '0800';

(d) to such other telephone numbers as the Governor from time to time

considers appropriate;

(e) to persons who have indicated to the Governor in writing that they do

not wish to receive telephone calls from that prisoner;

(f) to persons to whom a prisoner may not write letters in terms of the

Direction under Rule 52 of the Rules; or

(g) which in the opinion of the Governor -

(i) are mischievous, malicious or threatening; or

(ii) constitute or form part of any criminal activity or attempted

criminal activity."

[6] By paragraph 3(1) of the Direction it was provided:

"Subject to the following provisions of this Direction, where the Scottish Ministers provide telephones for the use of prisoners -

...

(d) in the case of PIN number phones, the Governor shall display beside

each PIN number phone a notice to prisoners in the terms set out in Schedule 2 to this Direction and, in a case where the Governor has imposed the condition mentioned in paragraph 6(8) of this Direction, the notice shall include an additional paragraph in the following terms:

'All telephone calls from this PIN number will be preceded by a recorded message which advises the recipient of the call that the call is coming from [insert name of prison] and that the recipient should stay on the line to accept the call or hang up to reject the call.'"

[7] Schedule 2 to the Direction provided:

"NOTICE TO PRISONERS

USE OF PIN NUMBER PHONES

Conditions of use of PIN number phones

The use of PIN number phones in this establishment is subject to the conditions specified in the Direction of the Scottish Ministers under Rule 54(2) of the Prisons and Young Offenders Institutions (Scotland) Rules

1994.

Telephone calls using this PIN number phone will be logged automatically (i.e. the telephone number dialled, the date, time and duration of the call and the total cost will be recorded). Calls may also be monitored (i.e. listened to or tape recorded). You should not therefore use the PIN number phone to discuss matters which you would wish to remain confidential.

If you use any PIN number phone in this establishment you shall be deemed to have given your prior consent -

(e)[sic] to the logging, monitoring and tape recording by any means of any

calls made; and

(f) in terms of the Interception of Communications Act 1985, to any

interception of such calls within the meaning of that Act."

 

The factual background

[8] In August 1999 the Governor of the prison in which the petitioner is incarcerated took steps in reliance on the Direction to introduce a new telephone system at the prison providing for a pre-recorded message to be attached to all prisoners' outgoing calls. That message has, since February 2005, 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."

 

The remedy sought

[9] In this petition for judicial review the petitioner seeks declarator

"that the Direction, et separatim the Governor's introduction of a new telephone system in reliance on the Direction, providing for all outgoing prisoner calls to be preceded by a recorded message advising recipients that the call is from the 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 under reference to section 57(2) of the [Scotland Act, 1998] ... "

 

Proceedings before the Lord Ordinary

[10] The Lord Ordinary, on the basis of the arguments presented to him, sustained at a first hearing the petitioner's plea to the relevancy of the Answers lodged by the Scottish Ministers and granted declarator as sought. Against that disposal the Scottish Ministers have reclaimed.

[11] Article 8 of the Convention provides:

"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 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."

[12] Before the Lord Ordinary it was accepted on behalf of the Scottish Ministers that the inclusion of a pre-recorded message constituted interference by a public authority with the exercise of a prisoner's right protected by Article 8. That concession was repeated before us. Accordingly, the issue before the Lord Ordinary and before this court was confined to paragraph 2 of Article 8. There are, as the Lord Ordinary recognised, two aspects to that paragraph, namely, whether the interference is "in accordance with the law" and, if so, whether it is necessary in a democratic society for one or more of the objectives set out in that paragraph. The second aspect falls for decision only if the first aspect is answered in favour of the Scottish Ministers. The Lord Ordinary, having heard argument, took the view that he could determine the first aspect at the first hearing without the need to hear evidence. He rejected a submission made by the Scottish Ministers that, before determining that aspect, the court would require to hear evidence touching on factual matters as regards which, on the face of the pleadings, the parties were in dispute.

 

The Lord Ordinary's treatment

[13] Before turning to the pertinent primary and secondary legislation the Lord Ordinary referred to the common law context against which the construction of such legislation required, he said, to be addressed. He noted that it was accepted by counsel then appearing for the Scottish Ministers that the right to respect for private and family life, and for home and correspondence, was a civil right at common law regardless of the Convention. Whatever name one chose to give it, it was, the Lord Ordinary said, one of the rights which the common law had long recognised as inherent in the rule of law in a free and democratic society; it would not readily be presumed that Parliament intended to remove such rights unless the particular piece of legislation quite clearly reflected that purpose. He referred to and cited from a number of familiar English and Scottish authorities, namely in the order discussed by him, Raymond v Honey [1983] 1 AC 1, v Secretary of State for the Home Department, ex parte Leech [1994] QB 198, v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, R v Lord Chancellor, ex parte Witham [1998] QB 575 and Leech v Secretary of State for Scotland 1991 SLT 910 and 1992 SC 89.

[14] The Lord Ordinary also referred to European jurisprudence where issues of accessibility and foreseeability are discussed. He concluded his discussion of that jurisprudence by observing that he was not persuaded that considerations of accessibility and foreseeability arose in the present case.

[15] Having noted at paragraph [20] of his Opinion that the petitioner's argument was focused on the blanket nature of the policy, the Lord Ordinary added (apparently as part of the petitioner's contention):

"The [telephone] numbers had been pre-approved. That meant that they had already been checked to ensure that the prisoner could not make telephone calls to victims or others who did not want to take calls from him."

The narrative of the contention continued:

"A pre-recorded message on all calls could not be regarded as relevant to the 'regulation or management of prisons', nor to the legitimate 'discipline and control of persons required to be detained therein', within the terms of s.39 of the Act. In those circumstances the Act did not permit the introduction of the blanket policy of attaching the pre-recorded message to outgoing calls. If, as appeared to be the case, the introduction of that system was permitted in terms of the Direction, then the Direction was ultra vires; or, if the Direction, being outwith the scope of the powers conferred by the Act, was within the scope of the Rules, then the Rules were ultra vires. That approach was consistent with the way the House of Lords had approached the issue before it in Raymond v Honey."

[16] Having discussed certain of the English authorities cited the Lord Ordinary, at paragraph [22], said:

"From the terms of s.39 of the Act, from the Rules and from these authorities, I take the following propositions. First, the rule making powers conferred by s.39 are limited to the making of rules which have as their object the regulation and management of prisons etc, and (so far as relevant here) the discipline and control of prisoners. 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. Fourth, except where they are necessarily in conflict, the rule making power must be read consistently with fundamental civil rights, on the basis that had Parliament intended to confer on the Secretary of State, or now the Scottish Ministers, a general power to remove or interfere with such rights, it would have said so clearly in the legislation and not used general words. Fifth, so far as it is possible to do so, the Rules should be read as not going beyond what is authorised by s.39, and therefore as intra vires. 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, and I would so read it and, on that basis, hold it to be intra vires. Sixth, in so far as the Direction or the policy adopted in relation to prisons is inconsistent with s.39, or with Rule 54(2) properly so understood, it is ultra vires."

[17] The Lord Ordinary then proceeded to discuss certain remarks made by Lord Phillips of Worth Matravers (then Master of the Rolls) in delivering the judgment of the Court of Appeal in R (Nilsen) v Governor of Full Sutton Prison [2005] 1 WLR 1028 and at paragraph [27] continued:

"The only challenge to the policy in these proceedings is to the pre-recorded message. There is no challenge presently to the system of having 20 pre-approved numbers (PAN), nor to the logging of calls by virtue of the PIN numbers, nor to the recording or monitoring of calls. Given the safeguards provided by the PAN and PIN systems and the recording and monitoring of calls, I can see no justification in terms of s.39 of the Act for the addition, at least as part of a blanket policy, of a pre-recorded message telling the recipients of telephone calls that the call is from a prison. Those safeguards would appear to be entirely adequate to deal with any concern that the prisoner might seek to make unwanted calls to his victims or to vulnerable witnesses. If, despite these safeguards, there is perceived to be a risk in a particular case, some form of message, pre-recorded or otherwise, could be attached on a case by case basis. A blanket policy such as this does not appear to be a restriction made necessary by the need for regulation or management of the prison nor for the discipline and control of prisoners. Indeed, since the message is designed to give information only to the recipient of the call, I cannot see how it could be justified even on the widest interpretation of the words of s.39 - it does not discipline or control the prisoner so much as provide information to someone outside the prison. There is, in my opinion, no power clearly given by the Act, whether expressly or by necessary or obvious implication, to interfere with the prisoner's civil rights in this way."

[18] Having discussed the response made by the Scottish Ministers in their pleadings to the petitioner's contention that there was no proper legal basis for an insertion of the recorded message in his outgoing calls from the prison, the Lord Ordinary concluded at paragraph [32]:

"In the circumstances I consider that the respondents have not made good their contention that the policy is authorised by s.39 of the Act or by necessary implication therefrom. Given the limited nature of the justification put forward by the respondents, I do not think that there is anything to be gained by appointing the case to a second hearing at which all the evidence and arguments on the entire case would be deployed."

 


The submissions of parties

[19] Mr. Moynihan for the Scottish Ministers, in inviting the court to recall the Lord Ordinary's interlocutor, observed that no complaint was made by the petitioner about the pre-recorded message other than about its first sentence; there was no challenge to the lawfulness of there being control over access to the telephone, of the logging or monitoring of calls or of some pre-recorded message preceding calls. The Lord Ordinary had erred in holding that he could decide the case without reliance on disputed facts. In particular, he had erred by accepting the petitioner's gloss on the agreed proposition that telephone numbers had been pre-approved, namely, that that "meant that they had already been checked to ensure that the prisoner could not make telephone calls to victims or others who did not want to take calls from him". As the Scottish Ministers averred, given the facility for a prisoner to provide a list of up to twenty numbers and for five of these to be changed in any week, it was not practical to seek in advance the agreement to being included in the list of those whose telephone numbers were listed. He had also erred in his approach to the "chilling effect" of the inclusion of the first sentence of the message, failing to recognise that this was not admitted by the petitioner. The thrust of the policy was to protect any third party from receiving an unwelcome oral communication from a prisoner. The Lord Ordinary had approached the question of vires from a "monocular" viewpoint, namely, with the interests of the prisoner alone in mind and ignoring the legitimate interests under Article 8 of those affected or potentially affected by his actings. A purpose of the pre-recorded message was to alert the recipient of the call to the fact that the call was being monitored. What was said during such a call might be reported and used with a view to prosecution (Dudley v HM Advocate 2003 JC 53). It was relevant for a recipient to know by whom and for what purpose the call was liable to be monitored. It was necessary, having regard to the interpretative requirements of section 3 of the Human Rights Act 1998, to interpret legislation in a way which had regard to the human rights of both prisoner and recipient. Although the two aspects of paragraph 2 of Article 8 were severable, they were "reflective" of one another. It was accordingly inappropriate to determine whether a measure was in accordance with the law without having regard to whether that measure was necessary in a democratic society for the stated purposes, including the rights and freedoms of others. Section 1(1) of the Prisons (Scotland) Act 1989 (the rule making authority) was wide enough to allow for the making of rules in respect of the discipline and control of prisoners which took into account the legitimate interests of third parties. Relative rules had been made, in particular Rules 54 and 142 of the 1994 Rules. The Direction in question had been made in furtherance of these rules. The Lord Ordinary, while purporting to deal solely with the issue as to whether the measure was in accordance with the law, had strayed in his discussion into the second aspect ("necessity") and in doing so had made unjustified factual assumptions. It was unnecessary at this stage to answer definitively whether the pre-recorded message (taken as a whole) was in accordance with the law. The appropriate course was to allow inquiry into the whole matter.

[20] Miss O'Brien for the petitioner invited the court to adhere to the Lord Ordinary's interlocutor. While under Article 8 a balancing exercise might arise, that was not inevitably so. The first step was whether the measure complained of was "in accordance with the law". The Lord Ordinary had been correct to address that question first and, having done so, to answer it as he had. The severability of these two aspects of paragraph 2 was plain from European jurisprudence. Reference was made to Narinen v Finland (App. No. 45027/98 - 1 June 2004), Halford v United Kingdom (1997) 24 EHRR 523, Ostrovar v Moldova (2007) 44 EHRR 19, Eriksson v Sweden (1990) 12 EHRR 183, Doerga v The Netherlands (App. No. 50210/99 - 27 April 2004), Khan v United Kingdom (2001) 31 EHRR 45 and Andersson v Sweden (1992) 14 EHRR 615. The Lord Ordinary had well understood that he was addressing only the issue whether the measure was in accordance with domestic law. He had not confused that with the question of proportionality. No balancing exercise was appropriate in relation to the issue of domestic law. It was legitimate to look at pre-incorporation domestic law and to ask whether there had been clear legislative authority for impinging upon Article 8 rights. It was not conceded that only the first sentence of the pre-recorded message was in issue - although no challenge to the remaining parts were presently taken. The expression "in accordance with the law" required, first, that the impugned measure should have some basis in domestic law and that, in terms of quality, it was accessible and foreseeable (P.G. and J.H. v United Kingdom, App. No. 44787/98 - 25 September 2001). In addressing whether, at the first stage, there was a relevant domestic provision, it was appropriate to look only at the rights of the person claiming an infringement; the interests of other parties came in only at the second stage, when the issue of proportionality fell to be addressed. Section 39 itself made no provision in respect of the use of telephones. Regulation 54(2) did not have in mind a direction of the kind in fact made; in particular it did not envisage conditions on telephone use including a recorded message devised for the benefit of recipients of calls. Interference with Article 8 rights could not be effected by vague delegated legislation. The issue of authorisation by domestic law should not be looked at in the abstract (Eriksson v Sweden). The Lord Ordinary's reasoning at paragraph [27] gave rise to some difficulty for the petitioner, but that passage should be read as obiter. His operative decision was at paragraph [32]. If the Lord Ordinary's approach was wrong, then looked at afresh the statutory provision, taken as a whole, did not meet the Strasbourg test of "in accordance with the law". If further procedure was required, that could be by a continued first hearing; any factual issues could be resolved without the need to lead evidence.

 

Discussion

[21] The question whether a measure is "in accordance with the law" requires in the first place interpretation of the domestic law by the national courts (Eriksson v Sweden, at para. 62). In the United Kingdom this will normally involve asking the following questions. First, what is the relevant "law"? Second, is that law habile, according to its terms, to authorise the measure in question? Third, if so, is it, as a matter of domestic law, intra vires?

[22] The measure, the legality of which is in issue in this petition, is the Prisons and Young Offenders Institutions (Communication by Telephone) (Scotland) (No. 2) Direction 1999 which, by paragraph 6(8), empowered the Governor to arrange for all telephone calls from PIN number phones to be preceded by a recorded telephone message. The Governor of the prison where the petitioner is held has exercised that power. The recorded message opens with a statement that the call is coming from a Scottish prison. The Direction was purportedly made under powers conferred on the Scottish Ministers by section 39 of the Prisons (Scotland) Act 1989 and Rules 54(2) and 142 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994.

[23] It follows that, in the present case, there exists a hierarchy of legal texts (statute, Rules and Directions) which, according to their terms, expressly authorise an arrangement whereby a recorded message including that opening statement precedes the connection of the caller with the recipient. Accordingly, the primary question on this aspect of the present case is whether the Direction, purportedly made under powers conferred by the statute and Rules, is properly within the powers so conferred. If that question is answered in the affirmative, subsidiary legal questions may arise under Strasbourg jurisprudence as to the quality (in terms of accessibility, foreseeability of effect and absence of arbitrariness) of the hierarchy of legal texts in furtherance of which the measure has been taken. Although Miss O'Brien in her submissions touched briefly on these subsidiary questions, we are not persuaded that it has been demonstrated that in that respect the hierarchy is not "in accordance with the law".

[24] Although section 39 was enacted in 1989, section 3 of the Human Rights Act 1998 enjoins the court, in so far as it is possible to do so, to read, and give effect to, section 39 in a way which is compatible with Convention rights. The wide scope of that interpretative injunction was recognised in Ghaidan v Gadin-Mendoza [2004] UKHL 30, [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.

[25] The Lord Ordinary placed significant reliance on principles which had been developed in the common law prior to the incorporation of Convention rights into domestic law. In the context of prisoners' rights, these included that a prisoner retains all civil rights which are not taken away expressly or by necessary implication (Raymond v Honey, per Lord Wilberforce at page 10), a proposition referred to as being "well established" by Lord Steyn in R v Secretary of State for the Home Department, ex parte Simms at page 120. While Parliament may legislate to interfere with basic rights, statutory provisions, unless sufficiently clear, will at common law be interpreted as not intended 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 section 3 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.

[26] In R. v Secretary of State for the Home Department, ex parte Leech Steyn L.J., delivering the judgment of the Court of Appeal, said at page 212 (emphasis added):

"Given that at the heart of this case lies the question whether a necessary implication wide enough to validate rule 33(3) [of the Prison Rules 1964] can be established, it is important to consider whether an objective need for a rule such as rule 33(3) in the interests of the regulation of prisons can be demonstrated".

The approach of considering "objective need" for the rule in question appears to be expressly approved by Lord Bingham of Cornhill in R (Daly) v Secretary of State for the Home Department at paragraph 10 (pages 539-40). 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.

[27] It is 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 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 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. In enunciating at paragraph [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 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.

[28] At a later passage (paragraph [27]) it might be thought that the Lord Ordinary has brought into account the interests of recipients of calls. He says:

"Given the safeguards provided by the PAN and PIN systems and the recording and monitoring of calls, I can see no justification in terms of s.39 of the Act for the addition, at least as part of a blanket policy, of a pre-recorded message telling the recipients of telephone calls that the call is from a prison. Those safeguards would appear to be entirely adequate to deal with any concern that the prisoner might seek to make unwanted calls to his victims or to vulnerable witnesses."

It is not, however, altogether clear whether at this point the Lord Ordinary, despite his reference to section 39, is addressing the issue of the construction of that power or is straying into the separate issue of whether the addition of the statement complained of in the pre-recorded message is proportionate. But, on the assumption that the first alternative is the case, it appears that the "safeguards" referred to must include the Lord Ordinary's gloss on the statement that the numbers had been pre-approved which, as noted above, is disputed. Otherwise, it is difficult to see that the Lord Ordinary could have regarded the safeguards as "entirely adequate to deal with any concern that the prisoner might seek to make unwanted calls to his victims or to vulnerable witnesses".

[29] 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.

 

Disposal

[30] In these circumstances we are satisfied that the Lord Ordinary's disposal of the case in the petitioner's favour was, at least at this stage, premature and that his interlocutor must be recalled. The case will then be remitted to him with a view to determining further procedure. In so far as matters of fact remain in dispute, it will be necessary to resolve these at a second hearing. While in some circumstances it might be possible to determine issues of vires and of the quality of the provision (the first aspect of Article 8.2) distinctly from the issues of necessity and proportionality (the second aspect), where, as in this case, consideration of vires appears to require consideration of the objective need for the measure in question, so that the two aspects may, as Mr. Moynihan put it, be "reflective" of one another, it seems appropriate that the case should in due course go to a second hearing embracing all issues between the parties.

 

Addendum

[31] We would add this. The discussion before us proceeded on the premise that Article 8 was "engaged". While it is clear that telephone conversations are covered by the notions of "private life" and "correspondence" in that Article (Klass v Germany (1978) 2 EHRR 214; Halford v United Kingdom (1997) 24 EHRR 523), we are not to be taken as holding that all aspects of the use of telephones (including the use of pre-recorded messages) are necessarily so covered. That issue will require to be determined in due course.

 


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