Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 144

P1306/13

SUPPLEMENTARY OPINION OF LORD STEWART

In the Petition

CHARLES O’NEILL and WILLIAM LAUCHLAN

Petitioners;

for

Judicial Review of the Prisons and Young Offenders Institutions Rules 2011, rule 63(8), etcetera

and Answers for

THE SCOTTISH MINISTERS

Respondents:

Petitioners:  Leighton;  Drummond Miller LLP

Respondents:  Springham;  Scottish Government Legal Directorate

28 October 2015

[1]        The joint petitioners are male co-offenders imprisoned in different prisons. They claim that, as same-sex partners, they are entitled to inter-prison visits in terms of article 8 ECHR [right to respect for family life]; and they claim that the Scottish Prison Service [“the prison service”] has wrongfully refused to allow them to have inter-prison visits. I have sustained the pleas of the Scottish Ministers, who have responsibility for the prison service and are the respondents to the petition; and I have rejected the petitioners’ claim principally for the reason that the existence they had together pre-incarceration, focused as it was on finding boys and vulnerable youths whom they could groom and sexually abuse, does not engage, or has not been shown to engage the “family life” component of article 8 ECHR on which they rely. For the detailed reasons reference should be made to the main opinion, also issued today, CSOH [2015] 93. This supplementary opinion addresses the petitioners’ claim that the rule made by the Scottish Ministers about inter-prison visits is ultra vires, etcetera.

[2]        The rule in question is rule 63(8) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 SSI 2011/311 (as amended). The current rule came into force on 1 November 2011. The previous rule was in similar terms. The key point is that there is an “entitlement” to have a visit from a prisoner in another prison but only in “exceptional circumstances”. What constitutes “exceptional circumstances” is not explained.

[3]        The potential for uncertainty, confusion even, in an exceptional but unexplained entitlement was illustrated by Ms Springham, advocate, counsel for the respondents. At the hearing on 12 May 2015, Ms Springham told me that the petitioners had been allowed one inter-prison visit: but she was unable to tell me what the exceptional circumstances were, whether the circumstances were constituted solely by the fact that the petitioners are now accepted as being in a same-sex relationship, or whether there was something else or something more. Ms Springham could not tell me in what circumstances the petitioners might be entitled to another visit or when, if ever, there would be such a visit. If counsel does not know these things, it is understandable that prison staff might have difficulty in processing inter-prison visit requests.

[4]        The essential difference between the parties is that Mr Leighton, advocate, for the petitioners submits that an “exceptional circumstances” entitlement is of itself and in itself unlawful because it is incompatible with Convention human rights et separatim lacks legal certainty [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41], whereas Ms Springham contends that an “exceptional circumstances” proviso lawfully allows local managers to exercise discretion in complex and infinitely varied situations [Bright v Secretary of State for Justice [2014] EWCA Civ 1628]. Both parties are right to some extent: the rule is not per se unlawful but without explanatory context for the rule the inter-prison visits regime lacks legal certainty. This is my opinion. There is a related issue about the quality of prison service decision-making: in the absence of a clear framework for inter-prison visits it would not be surprising if the decisions tended to be inadequate.  In my view the prison service has a duty to provide guidance so that prisoners―and, just as importantly, staff―can know how rule 63(8) operates.

 

Human rights, visiting and family contact in Scottish prisons

[5]        The full text of article 8 ECHR is:

“8.1     Everyone has the right to respect for his private and family life, his home and his correspondence.

 

8.2       There shall be no interference by a public authority with the exercise of this right except such as is 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.”

 

In situations where article 8.1 ECHR is engaged, there are questions about whether the “interference” in the shape of the rule about visits is “in accordance with law” and a proportionate way of furthering one of more of the legitimate aims listed in article 8.2 ECHR.

[6]        The prison visiting rules are undeniably “in accordance with law” to the extent that they have a statutory basis. The relevant primary legislation consists of the Prisons (Scotland) Act 1989 and the Criminal Justice and Public Order Act 1994. These statutes give the power to regulate the management of prisons by secondary legislation which is currently exercised in the Prisons and Young Offenders Institutions (Scotland) Rules 2011 SSI 2011/311 (as amended). The visiting rules in SSI 2011/311 provide among other things:

“Visits by persons of a prisoner’s choice

This sectionnoteType=Executive Note has no associated

63.—   (1) This rule applies to visits to a prisoner (other than an untried prisoner or a civil prisoner) by any person with whom the prisoner wishes to communicate.

 

(2) Subject to paragraph (3) and rules 77 and 78, the Governor must allow a prisoner, at such times as the Governor considers reasonable, either—

1. not less than 30 minutes in any period of 7 consecutive days; or

(b)  not less than 2 hours in any period of 28 consecutive days,

for the purposes of receiving visits in terms of this rule.

[...]

(5) Where a prisoner receives a visit in terms of this rule the visit must take place—

(a)  within the sight of an officer; and

(b)  within the hearing of an officer unless the Governor has otherwise authorised.

[...]

(8) A prisoner is entitled to receive a visit from a person who is—

1. a prisoner detained at, or on temporary release from, another prison; or
2. a prisoner on temporary release from the same prison,

only in exceptional circumstances and where the Governor of the prison, or the Governors of the prisons involved give consent and, in the event that any Governor refuses consent, the prisoners concerned must be informed of the reasons for the refusal.”

 

There is possible ambiguity in the reference to “the Governor of the prison, or the Governors of the prisons involved…”: but the words make sense on the understanding that where one of the prisoners is on temporary release only one governor, the governor of the host establishment, is involved in giving or refusing consent.

[7]        Immediate context is provided by rule 11(6) (information to be provided on reception regarding maintaining contact with family and friends), rule 42 (notification of relatives and friends), rule 43 (family welfare), rule 100 (special escorted home leave), rule 101 (escorted day absence for compassionate reasons) and rule 136 (forms of temporary release).

[8]        The context is wider than the rules. “Near relatives” are defined for the purpose of rule 101 (escorted day absence for compassionate reasons) by the Scottish Prison Rules (Escorted Day Absence) Directions 2011. The definition includes “(a) a spouse or civil partner...” and “(h) any person with whom the prisoner cohabited (whether of the same sex or not) prior to the prisoner’s imprisonment.” (The definition does not extend to cousins, which the petitioners also claim to be in some unknown degree.) The same definition of “near relative” is applied in the current protocol for “Inter-prison telephone calls between near relatives” which governs calls between “near relatives who are both in prison custody” [SPS Action Note 20A/08, 29 July 2008]. Further context is provided by the prison service website, “Families” section, which headlines “maintaining positive relationships” and “encouraging family contact.” One of the challenges for inter-prison “traditional family” visiting arises from the fact that different categories―young offenders, female prisoners and male prisoners―have to be held in separate accommodation. The inter-prison visits regime includes local protocols which are discussed below.

[9]        In terms of the 2011 Rules, rule 77, the governor has power, where necessary in the interests of security, good order or the prevention of crime, to prohibit or terminate visits by particular individuals. In terms of rule 78 the governor may order visits to take place in closed facilities which prevent physical contact and the transfer of items between visitors and prisoners. The Scottish Prison Rules (Restriction on Visits) Direction 2011 made under the 1989 Act and the 2011 Rules give supplementary directions as to the management of visits. By direction 5, visits may be monitored with audio and visual recording equipment.

[10]      Under reference to rules 63(2) and (5), what the petitioners are looking for is a face-to-face meeting within the sight and hearing of a prison officer which may last for no more than 30 minutes. Local protocols generally provide that inter-prison visits may take place, where authorised, twice a year. The contention for the petitioners must be―and this is how I read the pre-litigation correspondence from the petitioners’ solicitors―that such visits are necessary to satisfy a “family life” purpose that cannot be met by unlimited correspondence and fortnightly telephone calls. (This issue, namely whether family ties can reasonably be sustained by correspondence, is also encountered in article 8 ECHR immigration cases.) For the avoidance of doubt video-conferencing facilities are generally not available for family communication in or between Scottish prisons.

[11]      As indicated above, the debate focuses on rule 63(8) [emphasis added]: “A prisoner is entitled to receive a visit from a person who is (a) detained at... another prison... only in exceptional circumstances... and, in the event that any Governor refuses consent, the prisoners concerned must be informed of the reasons for the refusal.” Is an “exceptional circumstances” entitlement compatible with Convention rights and with the principles of lawful administration?

 

Exceptio firmat regulam: but what is the rule?

[12]      The phrase “exceptional circumstances” is a flexible qualifier that protects regulations from the threat of absurd, or indeed unjust results with which the varieties of life dog all generalisations. The phrase is one favoured by the drafter of the prison rules. Ms Springham has counted it fifteen times in the Prisons and Young Offenders’ Institutions (Scotland) Rules 2011, rules 33(5), 33(5)(a), 35(5), 35(5)(a), 63(8), 73(2), 87(5), 87(7)(b), 101(1), 112(2)(b), 113(1), 113(9), 122(5), 123(5)(b)(ii) and 124(5). As every tyro advocate knows the phrase presupposes a rule to be excepted from―exceptio firmat regulam in casibus non exceptis.^* The problem identified by Mr Leighton―though not perhaps in so many words―is that “exceptional circumstances” in rule 63(8) masquerades as the rule itself. As a pretended rule this inspecific exceptionality is problematic: it lacks legal certainty, it does not explain how to access the supposed “entitlement”, it authorises an unacceptably wide range of responses by decision-makers and, in doing so, it provides a possible cloak for vindictive and discriminatory decision-making [cf. Gillan and Quinton v United Kingdom (2010) 50 EHRR 45 at §§ 76―77].  The real rule is not that prisoners are entitled to inter-prison visits: the real rule―”norm” might be the better term but it is convenient to use the word “rule”―is that prisoners are not entitled to inter-prison visits unless there are exceptional circumstances and the governors consent. (If this were in doubt, it is made clear by the current staff guidelines for a number of prisons referred to below.) Parties are at issue both about the generality of this rule and about the terms of the exception.

 

Is the rule against inter-prison visits ECHR compatible?

[13]      Is a provision that, generally speaking, does not allow inter-prison visits per se incompatible with article 8 ECHR? I do not think so. To start with, the jurisprudence teaches that visits―”ordinary” visiting, that is, by people from “the outside world”―are legitimately subject to “a general limitation, with certain exceptions, to visits from relatives and close friends”. This is because even “ordinary” visits impose “a heavy administrative and security burden”[X v United Kingdom (9054/80) (1983) 5 EHRR 260 CD; Council of Europe model European Prison Rules (2006), rules 24.1―24.7]. Ms Springham asserts that the burden is multiplied when both visitor and visitee are convicts and when there have to be prison transfers. What Ms Springham asserts are facts within judicial knowledge; and, since it is agreed on both sides that a legitimate public interest is involved, the increased burden may be justification enough for the general non-entitlement [cf. R v Secretary of State for the Home Department Ex p Wynne [1992] QB 406; [1993] 1 WLR 115].

[14]      There is additional justification which resides, as a matter of generality, in the intuitively questionable purpose of inter-prison visits. A large part of the rationale for “ordinary” prison visits is to allow prisoners to maintain “contact with the outside world” and to foster “rehabilitation” and “reintegration in society on release”[X v United Kingdom (9054/80) (1983) 5 EHRR 260 CD]. This rationale, on the face of it, does not apply or applies with much reduced force to visitations inter se by convicts, above all by co-offenders. Absent the rationale, absent too, generally speaking, the imperative for inter-prison visits on human rights grounds. What all this amounts to is a presumption against inter-prison visits, which, in my view on the material offered to me on this occasion, is legitimate: the general non-entitlement to inter-prison visits is not per se incompatible with article 8 ECHR  [cf. R (on the application of P) v Secretary of State for the Home Department [2001] 1 WLR 2002].

 

Provision for “exceptional circumstances”

[15]      Were the non-entitlement absolute, no doubt the rule would, from time to time, in circumstances not necessarily foreseeable, interfere disproportionately with some unfortunate prisoner’s Convention rights. That is why the rule cannot be more than presumptive and why there has to be provision for exceptions. The question is: how should the rule define its exceptions or define, at least, the circumstances in which exceptions may be made? Convention jurisprudence acknowledges that there are contexts in which it is impracticable to lay down definitions in advance; and that the more complex the context the stronger is the argument for avoiding precision. When you put together in the same mix―to name but a few of the ingredients―penal establishments, possibly dangerous individuals, safety and security, maintaining good order and discipline, local conditions, respecting diversity, ensuring parity of treatment, the variety of “family” relationships now recognised by the law, the issues thrown up by family life, when you put these things together along with media scrutiny and confused, possibly evolving, social attitudes among prisoners and the public alike, I think it fair to say that you have a complex context for decision-making  [“Criminal families get taxpayer-funded trips to meet up in each other's jails”, Daily Mail, 25 March 2013; Bright v Secretary of State for Justice [2014] EWCA Civ 1628 at para. 29; Pawandeep Singh v Entry Clearance Officer (CA) [2005] QB 608 at paras. 20, 25 and 38 per Dyson LJ, at paras. 59 and 63-66 per Munby  LJ; Sunday Times v United Kingdom (1979–80) 2 EHRR at § 49]. This “special context”, Ms Springham argues, is the justification for confiding to the specialists on the spot, managers, prison officers and officials, the power to approve inter-prison visits in “exceptional circumstances” [Silver v United Kingdom (1983) 5 EHRR 347 at § 88].

 

“Exceptional circumstances” and ECHR compatibility

[16]      There is a seeming paradox in referring, as rule 63(8) does, to an “entitlement” that arises in “exceptional circumstances”: but read literally the provision is logical―where circumstances such as lawful imprisonment create a presumption against enjoying a fundamental right in particular ways then any residual access to the enjoyment is, by definition, exceptional and, legally speaking, still an entitlement, albeit a circumscribed one. This reading is Convention-rights compatible. As with the “exceptional circumstances” provision in section 30 of the Crime (Sentences) Act 1997 for England & Wales, Scottish prison rule 63(8) creates a scheme “in which Article 8 rights are properly respected and can be appropriately considered” [Hall, Koselka v Parole Board of England & Wales 2015 EWHC 252 (Admin) at para. 61]. The present case is about article 8 ECHR: but visiting requests which invoke other qualified ECHR rights and freedoms can be envisaged. Were St Peter and St Paul to be locked up in different Roman dungeons today their avvocati might well assert entitlement to inter-prison visits in terms of article 9 ECHR.

[17]      The phrase “exceptional circumstances”, or similar, figures repeatedly in the case law on article 8 ECHR [R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at paras. 39―42; MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at para. 41 per Lord Dyson MR giving the judgment of the Court of Appeal]. One of the Strasbourg prison-law admissibility decisions cited to me states [emphasis added]:

“The Commission considers that only in exceptional circumstances will the detention of a prisoner a long way from his home or family infringe the requirements of Article 8 (Art. 8) of the Convention... The Commission finds that no exceptional circumstances arise in this case”.

 

So it would be difficult to say that “exceptional circumstances” is per se a Convention-incompatible formula [McCotter v United Kingdom (18632/91), summarised at (1993) 15 EHRR CD98]. Indeed, the qualification appears, in terms, five times in the rules of the European Court of Human Rights at Strasbourg (July 2014), rules 36(4)(b), 43(5), 62A(2), 63(1) and annex A7(3). Cognate expressions are used eleven times, four times in rule 44 alone. To be fair, Mr Leighton does not say that “exceptional circumstances” can never authorise a rights-friendly assessment: he submits that respect for prisoners’ rights requires inversion of the existing prison rule 63(8) so that inter-prison visits, at least for family members, should be the norm unless the prison service demonstrates “exceptional reasons” for disallowing them. What he challenges is the idea of using “exceptional circumstances” as a criterion for accessing fundamental, by definition normative, rights. In this Mr Leighton claims the support both of prison policy and practice in England & Wales and of the law as laid down in Dickson [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41].

[18]      Mr Leighton submits that inter-prison visits in England & Wales are satisfactorily managed without an exceptionality “test”. The relevant instrument, he tells me, is Prison Service Instruction PSI/2011 (1 April 2011, updated) which simply states: “5.13  Visits may be allowed, on application, between close relatives when both parties are prisoners at separate establishments.” There is an inclusive definition of “close relatives” in paragraph 5.14. However, I am also referred to two written answers by the Parliamentary Under-Secretary of State, Ministry of Justice (Prisons and Rehabilitation), 15 April 2013 and 9 July 2013 [HC Deb, 15 April 2013, vol 561, col 115W; HC Deb, 9 July 2013, vol 566, col 226W]. These answers state [emphasis added]:

“Inter-prison visits are only allowed in exceptional circumstances, all visits are risk assessed and prison governors reserve the right to refuse any application. No conjugal visits are permitted.”

 

and

“Inter-prison visits are only allowed in exceptional circumstances, and no conjugal visits are permitted. All visits are risk assessed and prison governors reserve the right to refuse any application. Any costs relating to inter-prison visits are met locally by individual prisons”

 

Accordingly, it may be that while the policy in England & Wales is permissive, the practice is restrictive. I cannot be satisfied that the net effect is any different from the regime in Scotland.

[19]      As to the law laid down in Dickson, in Dickson the Grand Chamber at Strasbourg ruled that “exceptional circumstances” sets too high a threshold, a threshold which does not allow for a proper proportionality balancing exercise in terms of article 8.2 ECHR. So Mr Leighton is correct about the ratio of Dickson: but Ms Springham is correct too when she says that the ratio of Dickson does not apply.  Dickson was about the prisoner’s claimed entitlement to found a family by artificial insemination conflicting with the Home Secretary’s no-procreation policy. The policy had a punitive aim which was held by the Strasbourg Court to be Convention-incompatible. There are two grounds of distinction.

[20]      The point of distinction made by Ms Springham is that in Mr Dickson’s case the Secretary of State’s decision amounted to an absolute denial of the contested right to found a family. In the present case the prison service’s obligation to facilitate relations with a family member, or a claimed family member, in prison is not denied: it is acknowledged; and it is met to the extent of allowing regular telephone calls and unlimited correspondence, means of contact approved by the jurisprudence. The question, Ms Springham submits, is one of degree, of achieving a balance between the right of contact on one side and legitimate public interests and concerns on the other, while preserving some flexibility.

[21]      There is another reason for distinguishing Dickson, namely that in Dickson there were no security issues, administrative burdens or other legitimate public interests; and once the punitive policy had been stripped out, the United Kingdom government was left with nothing to place on the article 8.2 ECHR “necessary interference” side of the balance. In that situation, imposing an “exceptional circumstances” test effectively rigged the scales against the prisoner’s article 8 ECHR interests [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41 at §§ 48―50, 74, 75].  In contrast, where there is, as in the present case, a legitimate presumption in favour of interfering with private and family life, an “exceptional circumstances” qualification serves the purpose of preserving scope in appropriate cases for a proportionality assessment in accordance with article 8.2 ECHR.

[22]      The Strasbourg case law referred to above acknowledges that there can be legitimate public interest presumptions against the enjoyment of private and family life. Where this is the case only “exceptional circumstances” will tip the proportionality balance in favour of the individual. In unexceptional situations a proportionality assessment is futile. This understanding of how article 8 ECHR works is―correctly, if I may say so―gaining acceptance in the United Kingdom [Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) (Nos 1 and 2) [2011] 2 AC 104; R (on the application of Gurung) v Secretary of State for the Home Department [2013] 1 WLR 2546; MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at paras. 40―44 per Lord Dyson MR, giving the judgment of the Court of Appeal]. Part of the implication of the key paragraphs in MR is that the phrase “exceptional circumstances”, in and of itself, signals that in striking the proportionality balance decisive weight should normally be given to “the general rule”. For all these reasons therefore I reject Mr Leighton’s submission that the “exceptional circumstances” qualification in prison rule 63(8) is per se article 8 ECHR incompatible.

 

“Exceptional circumstances” as a legal test

[23]      There is also the issue raised by Mr Leighton whether “exceptional circumstances”, as a test, is consistent with general principles about discretionary administrative decision-making, particularly making decisions about access to human rights. The petitioners’ complaint about the rule 63(8) test is:

“The very real problem faced by the petitioners is that they do not know what they require to do in order to obtain [inter-prison visits] or if indeed it is possible for them to satisfy the test (whatever the test means). This difficulty is compounded by the failure of the respondents to provide any adequate reasons.”

 

I say “the rule 63(8) test”, but actually, at some places in the argument, Mr Leighton claims the support of Lord Bingham in Huang and of Lord Reed in G for the proposition that exceptionality can never be a qualitative test, or even a test at all [Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paras 19―20 per Lord Bingham of Cornhill; G v Scottish Ministers 2014 SC (UKSC) 84 at paras 41 and 54 per Lord Reed (with whom Lord Wilson, Lord Sumption and Lord Hodge agreed)]. In G Lord Reed, speaking about applications by mental patients to transfer from conditions of greater to conditions of lesser security, said:

“ [I]t would... be wrong to say that it is only in exceptional circumstances that an application should be refused...: it is impossible to say a priori whether the circumstances in which an application may properly be refused will be exceptional or not. There is no legal reason why they need be. Indeed ‘exceptional circumstances’ cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself.”

 

Lady Hale agreed on this point at paragraph 72.

[24]      It is a logical truth and a semantic one that “circumstances can be described as exceptional only by reference to a criterion”. The tendency is, of course, to leave the criteria unexpressed, a tendency which is a marked one in the language and reasoning of the law. This is the challenge when “exceptional circumstances” is the test―and, yes, I think it fair to call it a “test”, the question being as Lord Reed implied in G whether it has the necessary attributes of a “legal” test [cf. McDougall v Secretary of State for Social Services 1981 SC (HL) 23].

[25]      The attributes of “legality” are “accessibility”, “foreseeability” and “certainty” [R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345 at paras. 40―41 per Lord Hope of Craighead; Bernh Larsen Holding AS v Norway (24117/08) (2014) 58 EHRR 8 at §§ 123―125]. The jurisprudence has developed around measures which are restrictive or penal. An example is Gillan, the case about police anti-terrorist, stop-and-search powers, which Mr Leighton takes as his model [Gillan and Quinton v United Kingdom (2010) 50 EHRR 45]. Gillan is about the lawfulness of powers to prevent the enjoyment of article 8 ECHR private life rights. I think there has to be some relaxation of Gillan principles for powers which permit the enjoyment of article 8 ECHR rights. This is particularly so where powers―like the power to permit inter-prison visits contained in prison rule 63(8)―are properly expressed to be exercisable in “exceptional circumstances”.  Clearly “exceptional circumstances”, which are not amenable to black-letter pre-definition, do not fit well with the kind of sharp-focus “foreseeability” discussed in Gillan.

[26]      “Accessibility” and “foreseeability” signify together the ability to know of the existence of a provision, to understand in advance its scope and what effects may ensue from its application. In a case like the present the requirements may be met by looking beyond the provision itself to the whole legislative context―primary and secondary―to the jurisprudence, policy statements, non-statutory directions, guidance and documented practice, so long as published and available [Sunday Times v United Kingdom (A/30) (1979-80) 2 EHRR 245 at § 49; Silver v United Kingdom (A/161) (1983) 5 EHRR 347 at §§ 88―89; Kuznetsov v Ukraine (39042/97) 29 April 2003 at §§ 130―142]. So the question, to which I shall return below, is whether the context is adequately informative.

[27]      I have already decided that discretion in relation to inter-prison visits is properly vested in local decision-makers. When a power of discretionary decision-making is conferred, “certainty” means a power that is sufficiently controlled―as to its scope and the manner of its exercise―to give individual protection against arbitrary interference. A well‑recognised control is the requirement to give reasons. As Mr Leighton correctly submits, where there is a duty to give reasons, the adequacy of the reasoning is a condition of the lawfulness of the decision [R (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538; [2002] EWCA Civ 69 at para 34 endorsed by Lord Reed in Chief Constable of Lothian and Borders v Lothian and Borders Police Board 2005 SLT 315 at para 65]. In terms of prison rule 63(8) it is mandatory for the decision-makers to give reasons for refusing applications for inter-prison visits.

[28]      The prisons’ complaints system, internal and external, referred to by Ms Springham, serves to test the reasons and combines with the availability of corrective judicial review to offer protection to prisoners against abuse or arbitrary interference. In my opinion this after-the-event protection is adequate having regard to the subject matter [cf. Gillan and Quinton v United Kingdom (2010) 50 EHRR 45 at § 77, 86]. The mandatory reasons regime should make up for any residual uncertainty inherent in the “exceptional circumstances” provision and any context which properly elucidates it.

[29]      I therefore take the view, disagreeing in this with Mr Leighton, that as a matter of law the “exceptional circumstances” provision in rule 63(8) is not necessarily incompatible with the general principles of discretionary administrative decision-making. If the context is sufficiently informative, rule 63(8) has the attributes of a “legal” test.

[30]      Returning then to the question whether the context is sufficiently informative, I have come to the conclusion that it is not; that prisoners and even staff cannot know what kind of circumstances will support a successful inter-prison visit request; and that the inter-prison visiting regime as a whole, rather than rule 63(8) itself, is for that reason unlawful. Part of the problem is that there is no general policy on inter-prison visits.  The local reasons for refusal offered to the petitioners have tended towards inadequacy―which is Mr Leighton’s criticism.

 

Policy and practice for inter-prison visits
[31]      In response to a court order calling for “documents... showing any policy or practice operated by the respondents in deciding on inter-prison visits” the respondents have produced a variety of local staff guidelines, procedures and application forms. Documents have been produced for only nine of the, I think, fifteen penal establishments in Scotland. The documents produced emanate from Her Majesty’s Prisons [HMPs] at Addiewell, Barlinnie, Edinburgh, Glenochil, Greenock, Kilmarnock, Perth and Shotts and from Her Majesty’s Young Offenders’ Institution [HMYOI] at Polmont [6/3/106―144]. It is not clear that the staff guidelines are routinely available to prisoners although it is recorded elsewhere that on 5 October 2012 the HMP Glenochil guidelines were sent to Mr O’Neill’s solicitors [6/3/88]. Some documents are clearly meant not to be available. The Kilmarnock director’s rule no. 5.24 is headed: “Not for prisoner release.” The Addiewell instruction, no. L125.14, is headed “restricted”. The documents for Barlinnie, Glenochil, Greenock, Kilmarnock, Perth and Shotts deal with the application process only and are completely silent as to what might constitute “exceptional circumstances”. The Shotts application form states:

“The basic criteria is [sic] that both parties should not be within 3 months of liberation and not Have had a visit between each other for at least 3 months.”

 

There is no other guidance in the Shotts application form. I have analysed all the material. (Not all documents are clearly labelled and some sheets have been mis-filed so that analysis is not straightforward.) A few examples illustrate specific deficiencies.

[32]      Instruction no. L125.14 for HMP Addiewell (16.12.2013) states:

“Eligibility... The prisoner may only apply for permission twice in a period of 12 months. Visits may be allowed, on application, between close relatives as defined in paragraph 2.0 below when both parties are prisoners at separate establishments. Where a request is made for an inter-prison visit involving two prisoners who would not normally be held in the same type of establishment, due to gender or age, the Director [of HMP Addiewell] should still make reasonable efforts to accommodate the visit subject to security situations... Subject to security requirements and the availability of transport and accommodation, arrangements may be made for inter-prison visits to take place at three-monthly intervals... Both parties should not be within 3 months of liberation. Were [sic] inter-prison visits prove exceptionally difficult to organise the Director should consider the use of video-link facilities as an alternative...”

 

The Addiewell document raises more questions than it answers: for example, is the normal allowance “twice in a period of 12 months” or “at three-monthly intervals”. The document from HMYOI Polmont headed “Criteria and Rules for Inter Prison Visits” states:

“Inter Prison Visits are given under The Prisons and Young Offenders Institutions (Scotland) Rules 2011 Rule 63(1) Visitors [sic] of persons of a prisoner’s choice.

            All visits must take place at HMYOI Polmont.

            Must be with a close relative―Mother, Father, Step-Parent, Brother, Sister, Grandparent or Children.

            Both parties must be serving over 6 months―remands are not entitled to IPV.

            Neither party can currently be on closed visits or have been on closed visits in the last 3 months.

            Neither party can be within 3 months liberation.

            Under Rule 63 a prisoner is entitled to an IPC once every 6 months although some establishments will accept a 3 month period. (POLMONT ALLOW 3 MONTHS)”

 

[33]      It is not easy to reconcile the Addiewell and Polmont “policies” with the terms of rule 63(8). Curiously both documents use the term “close relative” which appears in the rules for England & Wales rather than the term “near relative” which is used in the Scottish rules and directions. And there are substantive anomalies. The young offenders’ document states that inter-prison visits are given under the normal rule 63(1) rather than under the “exceptional circumstances” provision rule 63(8). A striking feature is that young offenders can receive inter-prison visits from children but not from partners. How many young offenders―that is offenders between the ages of 16 and 21―have children in custody other than, possibly, infant children, accommodated with their mothers?

[34]      Judging by the application forms, the paradigm is family visits. It is unclear whether near relationship is treated as an “exceptional circumstance”. The inference that something more than relationship is required is supported by those inter-prison visit application forms which include, in addition to a “relationship” box, a “reason for application” or “reason for visit” section to be filled in by or on behalf of the requesting prisoner.

[35]      The court order has also recovered, under a separate call, four completed forms relating to successful applications by a heterosexual couple or heterosexual couples [6/4]. (These have been anonymised.) Two forms are from HMP Cornton Vale, the women’s prison, and two from HMP Addiewell. The Cornton Vale pro forma assumes a family relationship in that it simply asks for “relatives (sic) details”. The form has a “Reasons for application” box. The reasons given in the two completed HMP Cornton Vale forms are “to maintain family contact” and:

  “We have already had one about 6 month ago he is my partner I’ve been with him for a bit.”

 

Both applications were approved. The reasons given for the decision on the first occasion include: “I approve this visit to continue family relationship”. The reasons on the second occasion are:

“[Prisoner] and her partner both meet the criteria. Previous visit took place. No concerns raised.”

 

What the criteria are―or criterion is―is not explained. Two completed applications from a male prisoner at HMP Addiewell specify the relationship as “partner & next of kin” and “partner & NOK” respectively. Neither offers a specific reason for the requested visit. The good behaviour of the applicants is commented on as a positive feature in all cases.

 

The petitioners’ experience: applications, decisions and reasons
[36]      In response to a court order calling for production of “all letters, requests, complaints and other communications made by the petitioners... pertaining to... the allowance of inter-prison visits” the respondents have produced a bundle of material which evidences six directly documented applications by the petitioners for inter-prison visits in the period 2010 to 2013. The documentation contains references―which may or may not be reliable―to other undocumented applications. A written complaint by Mr O’Neill dated 12 October 2011 [6/3/62] states: “In the last 12 months I have been in this establishment I have submitted at least six inter prison visit application forms to staff in the hall.” The complaint is that: “I have never been given an answer to any of these applications, simply handed fresh forms each time I enquire & told to re-apply.”

[37]      There is an undated prison service memorandum headed “Mr Charles O’Neill... Reasons for refusal dated 8^th December 2010” [6/3/73]. This bears to relate to an application received on 5 October 2010 (which has not been produced). The memorandum states:

“With regards to family contact there is no evidence on our prison records of them cohabiting in a long term relationship. Mr Lauchlan lists a friend as his next of kin and his relationship with Mr O’Neill as his cousin and both have different addresses. During a similar request in 2009 Mr Lauchlan was made aware of this and requested to provide evidence of having cohabited prior to imprisonment. Mr Lauchlan could only provide a few holiday photographs at that time and has not provided any further evidence since then. I am not aware of Mr O’Neill providing any such evidence in support of his recent application either.”

 

The “similar request in 2009”―perhaps by Mr Lauchlan―has not been produced. Another undated memorandum relative to a request for inter-prison telephone calls states [6/3/76]:

“... To date neither prisoner has to our knowledge provided evidence in support of this claim [to have cohabited prior to imprisonment]... the approval of these inter prison phone calls will be for the purpose of maintaining contact with their current appeal process as indicated by both prisoners during previous similar requests... These arrangements will be reviewed at the beginning of May 2011 and further approval by [governors in command] of both establishments required for any continuation. In the meantime Mr O’Neill & Lauchlan will require evidencing their relationship claims...”

 

Mr Leighton is content for me to deal with the petitioners’ complaints on the basis of the directly documented applications.  Charles O’Neill made four directly documented applications in the period 2010 to 2013 when he was in HMP Glenochil. In 2011 and 2012 William Lauchlan made two directly documented requests for inter-prison visits while he was incarcerated in HMP Edinburgh. Details of the six directly documented applications and the pre-litigation correspondence are set out, in date order, in the appendix below.

[38]      Three themes emerge from this suite of documents. The first is that the prison authorities continued for three years, apparently, to be uncertain about the petitioners’ claim to be same-sex partners who had been in a relationship prior to incarceration. The petitioners, apparently, offered no evidence to support their claim. For a discussion of what the prison service knew, see the main opinion. The second theme is that the reasons for refusal tended to be uninformative, if not downright inadequate, with statements such as “you do not meet the criteria” or “the application does not evidence exceptional circumstances” [17 November 2011; 12 August 2012]. Thirdly there seems to have been wholesale non-compliance with the requirement in rule 68(3) for the governor or governors to inform both prisoners of the reasons for refusal. If the petitioners’ claim were otherwise well-founded, I should have held the reasons given by the prison service for refusing them inter-prison visits to have been inadequate and unlawful.

 

Assessment

[39]      The actual grounds of challenge to the inter-prison visits regime set forth in the petition are directed at rule 63(8) and specifically at the “exceptional circumstances” provision. For the reasons given above, rule 63(8) is not, of and in itself, unlawful. The problem―and I agree with Mr Leighton that there is a problem―is that there is no explanation as to how the rule is to be applied, no policy. What kind of general policy might there be? A well-tried way of preserving flexibility while maintaining consistency and satisfying the requirements of legality is to publish guidelines listing relevant factors, positive and negative, and giving examples [Dickson v United Kingdom (44362/04) (2008) 46 EHRR 41 at § 13; R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345 at para 55 per Lord Hope of Craighead; cf. Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 at 179D―181F per Lord Scarman].

[40]      The materials put before me at the hearing give an idea of what a lawful, human-rights-compliant policy using general guidelines might look like. Drafting prison service guidelines is not part of my remit: but I shall make four suggestions which, on my understanding, help to give effect to the intendment of rule 63(8): “entitlement” should not be confined to “family life” reasons, though “family life” reasons demand to be the main subject of the guidelines; a “near relative” connection should be treated as a relevant factor but not by itself sufficient to constitute “exceptional circumstances”;  arguably visits should be authorised only where “family life” cannot be adequately maintained by correspondence, telephone calls and (when available) video-linking; and other factors of relevance might include the extent to which visits are likely to promote socially useful objectives such as rehabilitation and re-integration in the community and might include also the conduct of the prisoners concerned, disciplinary and security issues. In the latter context it could be useful to remind prisoners of governors’ powers in terms of rules 77 and 78 to prohibit or terminate visits by particular individuals and to order visits to take place in closed facilities. As for the disposal of the petitioners’ application, the petition has been refused. The details of which pleas have been upheld and which repelled can be found at the end of the main opinion CSOH [2015] 93.

 

 

APPENDIX

 

Requests by the petitioners for inter-prison visits 2010―2013

 

Application by Charles O’Neill, HMP Glenochil, 18 November 2010 [6/3/21]

[A1]     Charles O’Neill’s application for an inter-prison visit dated 18 November 2010 described the relationship with William Lauchlan as “partners” and gave the reason:

“... William is my long term partner. We have wrongly been convicted of these crimes. We have ongoing appeals and require these visits for both legal and family contact aspects...”

 

The prisoner’s personal officer was unable to confirm that Mr Lauchlan was Mr O’Neill’s partner. The prisoners were recorded as co-accused. The hall unit manager commented: “... you have had weekly telephone contact with Mr Laughlan [sic] for some time now and therefore do not see any justification for an inter prison visit.” The request was not forwarded for governors’ comments. Indeed there is no evidence, apart from the suggestion in the prison service letter of 26 November 2013 quoted below, that the governor of either HMP Edinburgh or HMP Glenochil was ever involved in the decision-making about inter-prison visits.

[A2]     By letter dated 5 January 2011 to the governor of HMP Glenochil, Mr O’Neill’s solicitors stated: “Our client advises that he has been in a long term relationship for over 17 years with W Laughlan...” The solicitors asked for inter-prison telephone calls to be permitted between the two men as “near relatives” in terms of Action Notice 20A/08. The letter also asked for confirmation of the steps that might be taken to obtain inter-prison visits [6/3/82]. The provision of inter-prison phone calls was thereafter discussed by prison officials. By memo dated 20 January 2011 the unit manager at HMP Edinburgh noted [6/3/76]:

“In considering this request we note that Action Notice 20A/08 provides guidance on Inter Prison Phone Calls and also reference to direction to rule 92(5) dated 16 March 1999 gives clear definitions of a near relative. The definition of a near relative is any person with who the prisoner cohabited (whether of the same-sex or not) prior to imprisonment. To date neither prisoner has to our knowledge provided evidence in support of this claim. It must therefore be made clear to both prisoners that until such evidence is provided to our [governor in charge], the approval of these inter prison phone calls will be for the purpose of maintaining contact to assist with their current appeal process as indicated by both prisoners during previous similar requests.”

 

By letter dated 7 February 2011 the unit manager at HMP Glenochil advised Charles O’Neill’s solicitors that either prisoner could submit an inter-prison visit request.

 

Application by Charles O’Neill, HMP Glenochil, 12 October 2011 [6/3/27]

[A3]     Mr O’Neill’s application of 12 October 2011 described the relationship as “partners” and gave the reason:

“I wish to visit with my long term partner. We have both made many applications for these visits―which have ‘all’ gone missing―over the past 12 months... We... require time together to prepare our appeal, as well as family contact... We have not had any family contact now for years...”

 

The personal officer commented that the previous application “last November (2010)” had been denied by the [hall] unit manager. The hall unit manager’s comments stated: “see the attached.” Attached was a letter from the residential unit manager dated 17 November 2011 which stated:

“I have considered your request against both the old Prison Rules and the New Rules which came into force on the First of November. As a consequence I am of the view that you do not meet the criteria for an inter prison visit and therefore must advise that I am refusing your request.”

 

 

Application by William Lauchlan, HMP Edinburgh, 28 October 2011 [6/3/13]
[A4]     Willam Lauchlan’s application of 28 October 2011 described the relationship as “partner”. The HMP Edinburgh application form does not include a section for the prisoner to state the reason for the application. The box for the prisoner’s personal officer’s comments are required to “include recent conduct, reason for application”. The comments are: “At present moment you do not meet the criteria”. The hall manager’s comments are:

“Nothing obvious to suggest Mr O’Neill and Mr Lauchlan are partners. Listed as cousins on prison system, also as co-accused. In absence of proof of relationship I would not recommend.”

 

The unit manager’s comments are:

“Coupled with the information above there is adverse intelligence reports indicating that Mr Lauchlan’s behaviour does not merit an interprison visit at this time.”

 

 

 

Application by William Lauchlan, HMP Edinburgh, 26 January 2012 [6/3/16]

 

[A5]     Mr Lauchlan’s application of 26 January 2012 described the relationship as “partner”. The personal officer’s comments offered the prisoner’s reason as: “Mr Lauchlan claims prisoner C. O’Neill is his partner and he has not seen him since convicted.” The hall manager commented:

“... I have no conformation that these individual are classed as partner. But I am aware both are in the process of seeking clarification on the matter. On that note I would defer this request until conformation of the above is clarified.”

 

The unit manager commented:

 

“As stated by the first line Manager above Mr Lauchlan does not meet the criteria, due to there being no evidence to suggest the prisoners are official partners.”

 

 

Application by Charles O’Neill, HMP Glenochil, 12 August 2012 [6/3/35]

[A6]     The expression “life partner” was first used in a complaint by Charles O’Neill about correspondence addressed by him to Mr Lauchlan going missing. The complaint was dated 18 July 2012 [6/3/64].  Mr O’Neill was dissatisfied with the residential first line manager’s response and complained to the internal complaints committee on 26 July 2012 in the following terms:

“... after speaking with the prison inspectors (Ms Kate Donnegan and Brigadier Munro) at both last annual visits, I was told that the IPV system was in place for prisoners in our situation. These [telephone] calls were initially approved 4 years ago at Barlinnie Prison for ‘family contact’ with ‘my partner’. [The hall manager] has asked for proof of relationship. It is clearly documented within court transcripts and prison files (available to you) that Mr Lauchlan is my life partner. He is my next of kin on your prison computer. We have been together more than 20 yrs. What exactly is it that your require as proof. Is this also applicable to heterosexual couples or does the ‘criteria’ only apply to homosexual couples.”

 

On 13 August 2012 the internal complaints committee concluded that Mr O’Neill should await the outcome of his application made on 12 August 2012.

[A7]     Mr O’Neill’s application for an inter-prison visit dated 12 August 2012 described the relationship as “life partners” and offered the following reason:

“I wish to visit my life partner... We have had no quality time in 4 ½ years in custody. We only see each other during court appearances. We have been in our relationship more than 20 yrs... We require contact with each other to prepare out appeal defence... We have no family in the UK. We have one friend/ business partner who visits us monthly, so we have no other contact with anyone. We feel it inhumane to be kept apart in this way.”

 

The personal officer commented:

“Charles approached me last week to ask about the possibility of an inter prison visit with his same sex partner William Lauchlan... He informed me that a number of applications had been submitted, but do not appear to have been followed through. Charles stated that he has been in a relationship with William for over 20 years, and that contact with him has been minimal since convicted. They are co-accused... We are unsure of the criteria for IPVs with same sex partners.”

 

The hall unit manager commented: “The application does not evidence exceptional circumstances therefore I cannot approve this request.” It seems that on 22 August 2012 Charles O’Neill was offered the facility of inter-prison telephone calls with Mr Lauchlan which had previously been withdrawn [6/3/68]. The telephone calls were apparently reinstated to facilitate the petitioners’ appeal to the United Kingdom Supreme Court [6/3/86]. By letter dated 5 September 2012 the family contact officer notified Mr O’Neill that his application for an inter-prison visit had not been approved by the hall unit manager “as your application does not evidence exceptional circumstances”. By letter to Mr O’Neill’s solicitors dated 5 October 2012 the residential unit manager confirmed the refusal and stated [6/3/88]:

“... I am required to ensure that all applicants meet the criteria set out in Prison Rule 63 (I have attached our guidance notes re this matter). In this case there is a requirement to evidence ‘exceptional circumstances’. Your client failed to provide information which would convince me that this request met the criteria and I therefore refused the request. This was fully explained to your client.”

           

 

Application by Charles O’Neill HMP Glenochil 12 February 2013 [6/3/41]

[A8]     Charles O’Neill’s application of 12 February 2013 describes the relationship as “partner” and offers the following reason:

“William Lauchlan is the only blood relative I have in Scotland/ UK. My family all live in Australia. He is my next of kin. I have had no family contact visits in five years. Mr Lauchlan and myself have lived together for some twenty odd years as a couple though not in a sexual relationship. We have an ongoing appeal against conviction which will be heard on 29^th and 30^th April 2013 at the Supreme Court in London. We need time to prepare our case. We are unable to instruct solicitors properly & as a result of this separation our trial was unfair and hindered due to being [word indecipherable] in separate prisons & unable to prepare... My mental and physical health is suffering as a result of no family contact. Recent stroke confirms that. I was told these visits would go ahead at Glenochil when transferred from P.H. [Peterhead] prison. To date we have had none.”

 

Mr O’Neill’s personal officer commented:

“... There is currently a protocol in place allowing them inter-prison phone calls in order to maintain ‘family contact’ and to discuss their upcoming appeal. Mr Lauchlan is listed as Mr O’Neill’s next of kin however Mr Lauchlan’s next of kin is listed as a mutual friend, E*** W*****.”

 

The hall unit manager commented:

 

“... Mr O’Neill maintains contact with Mr Lauchlan through letters and inter-prison phone calls. Both parties have been instructed to provide evidence that they are partners. To date neither HMP Glenochil or HMP Edinburgh are in receipt of supporting evidence. In light of this information I do not support Mr O’Neill’s application as there is no evidence of exceptional circumstances or any change since the previous requests being declined.”

 

By letter dated 19 February 2013 the family contact officer, HMP Glenochil, notified Mr O’Neill that his application had not been approved by the hall unit manager “as there have been no change in circumstances since your last application in September 2012.”

 

Pre-litigation requests and responses June to October 2013

[A9]     By letters dated 13 June 2013 to the governors of the respective prisons the solicitors for Mr O’Neill and Mr Lauchlan asked for confirmation of the steps to be taken to uphold the prisoners’ article 8 ECHR rights. The letters stated [emphasis added]:

“... We are advised that they have been partners for many years now. We are advised that they have been attempting to have contact with each other but this has, in the main, been prevented by the Scottish Prison Service.

           

We write to confirm that Mr O’Neill and Mr Lauchlan are partners. They are also related to each other. We submit that the arrangements which are in place for them having contact with each other are insufficient in terms of article 8 of the European Convention of Human Rights to preserve the private or family life of Mr O’Neill and Mr Lauchlan and accordingly we request that the Scottish Prison Service does more to sustain their relationship. We submit that they should be afforded greater opportunities of correspondence, telephone calls, face to face visits and transfer to the same prison in order that they can be together. We submit that all steps should be taken by the Scottish Prison Service to facilitate and sustain this relationship...”

 

By letter dated 2 July 2013 the acting unit manager at HMP Edinburgh replied in relation to William Lauchlan:

“... We are aware of your client’s situation in regard to his relationship with Mr O’Neill and that they claim to be partners, our information suggests they are cousins. Your client has had opportunity to discuss this and other issues at integrated case management meetings (ICM) but has refused to engage with both the process and partnership agencies to date.

As for contact there is evidence that your client corresponds on a regular bases through the mail as any convicted prisoner is entitled to do. There is also evidence to support the setting up of regular inter prison telephone contact between the two...”

 

By letter dated 17 July 2013 the residential unit manager at HMP Glenochil stated in response: “It is relevant that neither you nor your clients have provided any evidence to support this assertion [of being in partnership prior to imprisonment] and should you or your clients have any such evidence it would be helpful in informing future management of your clients, especially in considering access to inter prison phone calls.”

[A10]   The solicitors reverted with a letter dated 21 October 2013 which included the following:

“To avoid costly litigation, we would be grateful if you would confirm whether the Scottish Prison Service accepts that Mr O’Neill and Mr Lauchlan are in a homosexual relationship with each other. If the Scottish Prison Service does accept that they are in this relationship, please confirm to us why it is deemed that they cannot have additional contact as a result of this relationship.

 

If the Scottish Prison Service does not accept that Mr O’Neill and Mr Lauchlan are in a homosexual relationship, please confirm what information you require from us in order to demonstrate to you that they are in this relationship...”

 

This time, by letter dated 26 November 2013, the senior legal services manager of the prison service replied, stating:

“We are content to accept your clients’ assertion that they are in a relationship, although that fact alone will not necessarily entitle your clients to additional contact. By additional contact, we assume you mean inter-prison visits, and we would refer you to Rule 63(8)... Having considered your clients’ previous requests for an inter-prison visit, and all relevant information, the Governors of the respective prisons decided that exceptional circumstances were not present... [A]rrangements are in place for your clients to contact each other by telephone fortnightly and to correspond regularly with each other by letter. It is therefore clear your clients are being permitted to contact each other on a regular basis.”

 

There matters rested until the issue was brought into Court. Since the matter has been in Court the petitioners have had one inter-prison visit. The decision to facilitate the visit has been made on the basis of evidence not disclosed to me.