Issue 50 August 2010 - Current Awareness: Prisoner phone calls
PRISONS - Potter v ScottishMinisters [2010] CSOH 85
P, a prisoner, sought judicial review of a Direction of the Scottish Prison Service (“SPS”) which advised the recipients of telephone calls made from prison that the call emanated from prison. Calls were also monitored and this was made known as part of the message. P argued that the Direction was an unlawful and disproportionate interference with his rights under art.8. His contention was that the blanket effect of the Direction posed an unjustifiable limitation on his right to contact family and friends, particularly as the recipient of the call might not know the caller was in prison. He succeeded but the respondents reclaimed. They argued that the Direction served to protect the public, including victims of crime, from unwanted calls from prisoners. The Inner House ([2007] CSIH 67) allowed that appeal and remitted the case back to the Outer House for a proof, principally on the question of proportionality.
After hearing the proof Lord Matthews held that there was no breach of art.8.
Held: petition dismissed.
(1) The SPS clearly regard the rehabilitation of prisoners and the maintenance of contact between them and their families and friends as a priority .On the other hand, it has to manage the prison population. As a public authority they owed duties also to persons out with the prison, if they might be affected by the activities of the prisoners. The maintenance of good order and discipline within the prisons involved some degree of control over people outside to stop them from encouraging prisoners to misbehave or from bringing prohibited articles into the prison and it was necessary to exercise some control over the use to which telephones are put. It was plainly necessary that the prison authorities be able to monitor and record telephone calls for the purposes of the prevention of disorder and crime but, in particular, for the discipline and control of persons required to be detained therein in terms of s.39(1) of the Prisons (Scotland) Act 1989.
(2) The surveillance operated by SPS was intended to be overt rather than covert. In any event, that that is so can be seen from the notice which advises prisoners of the fact of monitoring and recording, etc.
(3) While on occasions covert surveillance would be justified, that would not be the case in the vast majority of cases. The significant number of calls made from prison shows that there are a significant number of recipients whose art.8 rights would be infringed were they not made aware of the fact of the surveillance. They would thus at the very least require to be told of this surveillance. (4) There would be little point in advising someone that their calls were being logged, recorded and perhaps monitored without telling them who was doing the logging, etc. On this basis alone, it was considered that there is a pressing objective need for the message and that s.39 has to be construed in a way which allows for its imposition in the telephone calls.
(5) The Court placed weight on evidence of prisoners making unwanted telephone calls to the victims of their domestic abuse and violence. A number of women had provided evidence that the message provided them with an opportunity to decide how to deal with unwanted calls. One third of women experienced ongoing harassment after a relationship had ended.
(6) Although criticism was made of the blanket approach in Scotland, when one examined the systems in England and Ireland, the Court could see that they encounter the same problems but tackle them in a different way. In England, most of the prisoners are on a call-enabling system with a sample being monitored but responsibility for advising the recipient of calls that the call is coming from a prison is left to the prisoner. This system was formerly in use in Scotland and was abandoned because Scottish prisoners did not pass on the information. In Ireland there is a different approach but the prisoner can only telephone a limited number of people who will, in view of the way the system works, know that he is calling them from a prison.
(7) The fact that the contents of the Direction were not debated in Parliament was not of any significance. If there is any interference with the petitioner’s art.8 rights it is not on the same level as the deprivation of a right to vote, and so it was unnecessary for the Direction to have been the subject of Parliamentary scrutiny.
(8) Assuming the Direction and the inclusion of the message to be, “according to law” there was still no breach of the petitioner’s rights under art.8(1). The right under art.8 is a nuanced or sophisticated one. Further, the case of AB v the Netherlands (2003) 37 EHRR 48 indicated that there was no right to the use of a telephone and that failure to provide a telephone to a prisoner would not breach art.8(1), albeit that it might impinge on the prisoner’s ability to contact his family. That always presupposes that there is some other means of communication available, which is plainly the case here. Quite apart from letter writing, the evidence disclosed that the office phone could be used in emergencies and the petitioner has access to visits. Here there were conditions which controlled the use of a telephone but in fact only tangentially affected it. They are designed for proper purposes and in as much as they may impinge upon the art.8(1) rights of the prisoner, that impact was tenuous. Also, on a more fundamental level and far from being an interference with the petitioner’s art.8(1) rights, the provision of the telephone with the conditions attached is an example of SPS giving effect to those rights. They were not required to provide a telephone but they did so, albeit with conditions attached.
(9) A blanket approach was justified. The statistics could be read as showing that the existence of the message actually works. The hang-up rates are impressive when compared with hang-up rates from other organisations. There is a limited amount of information available from the statistics about the number of threats made, etc. As a proportion of the total number of calls made in any one year they do not amount to a great deal. However, they did show that this kind of activity does go on. The fact that the monitoring is overt allows people to know that their calls will be listened to and can self-evidently act as a deterrent, albeit the statistics show that some people nonetheless engage in criminal activity. It is likely that since only some of the calls are monitored the actual numbers of prisoners and recipients engaging in such an activity are greater. It was plain that the message does not work for everyone but that is no reason to discard it.
(10) The regulation of prisoners is a matter of great importance. The SPS have operational knowledge of what goes on in prisons and bullying and exploitation are likely to result from a system which discriminates between prisoners as to their use of the phone. The interference with a prisoner’s art.8(1) right is marginal at best. Arrangements can be made to make calls at specific times, as was done in the petitioner’s case. The suggestion that the message acts as a reminder either to him or to the recipient of the call that he is in prison is entirely baseless. The prisoner cannot but be aware during every waking hour where he is and it was difficult to envisage that at least for the most part, his family and friends do not know where he is. Doubtless he will constantly be asked how he is coping and told that he is being missed. If there are other people whom he wishes to contact, who do not know that he is in prison, he had the option of writing to them or making arrangements for someone else to answer the phone in the first instance. If there was interference with the petitioner’s art.8(1) rights, such interference was proportionate.