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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY S AGAINST THE SCOTTISH MINISTERS [2020] ScotCS CSIH_64 (16 October 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_64.html
Cite as: [2020] ScotCS CSIH_64, [2020] CSIH 64, 2020 SLT 1254, 2020 GWD 33-420
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 64
P750/19
Lord Malcolm
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LORD DOHERTY
in the Appeal
by
S
Petitioner and Appellant
against
THE SCOTTISH MINISTERS
Respondents
with a public interest intervention
by
THE COMMISSION FOR EQUALITY AND HUMAN RIGHTS
Intervener
Petitioner and Appellant: Leighton; Drummond Miller LLP (for McGreevy & Co, Glasgow)
Respondents: Byrne; Scottish Government Legal Directorate
Intervener: (written submissions only) D McLean; Equality and Human Rights Commission
16 October 2020
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2
Introduction
[1] This is an appeal in terms of section 27D of the Court of Session Act 1988. The
petitioner challenges the interlocutor of the Lord Ordinary dated 24 March 2020 which
refused to grant him permission to proceed with his petition for judicial review.
Background
[2] The petitioner is a convicted prisoner who is in custody in HMP Shotts. He is
serving a life sentence with a punishment part of 33 years. His paternal grandmother, M,
was born in December 1920. She is frail and suffers from dementia. In recent times she has
been cared for in a nursing home. It is common ground that she is no longer able to travel to
visit the petitioner. Until about 2017 she went to Helensburgh to make use of video-
conferencing facilities which the Scottish Prison Service (“SPS”) made available there. The
petitioner and M may also communicate by letter and telephone call, although it appears
that she becomes upset during telephone calls because she is unable to see him.
[3] Rules 101 and 102 of the Prisons and Young Offenders Institutions (Scotland)
Rules 2011 (“the Prison Rules”) provide:
“101.— Escorted day absence
(1) In this rule, “escorted day absence” means a leave of absence granted to a
prisoner, under escort from the prison, for a period not exceeding 1 day, to enable
the prisoner—
(a) to visit a near relative who it appears to the Governor is dangerously
ill;
(b) to attend the funeral of a near relative; or
(c) to attend at any place for any other reason where the Governor is of
the view there are exceptional circumstances.
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3
(2) On the written application of a prisoner and subject to any direction made by
the Scottish Ministers under paragraph (4), the Governor may grant escorted day
absence to the prisoner if satisfied that the purpose of the application is genuine and
appropriate.
(3) Where the Governor grants escorted day absence, the prisoner concerned
must be escorted by an officer or officers throughout the period of absence from the
prison.
(4) For the purposes of escorted day absence the Scottish Ministers may specify
in a direction—
(a) the criteria about which the Governor must be satisfied before
granting escorted day absence;
(b) the persons who are to be treated as near relatives of the prisoner;
and
(c) the proceedings, services or ceremonies which a prisoner may attend
for the purpose specified in paragraph (1)(b).”
[4] Articles 3 and 4 of the Scottish Prison Rules (Escorted Day Absence) Direction 2011
(“the Direction”) provide:
“Criteria applicable to escorted day absence
3. The criteria about which the Governor must be satisfied before granting
escorted day absence are –
(a) the Governor has received an application from a prisoner stating
(i) why escorted day absence is required;
(ii) in relation to escorted day absence for the purposes specified
in rule 101(1)(a) or (b)the name of the near relative and name and
location of the place at which escorted day absence is to be taken; and
(iii) in relation to escorted day absence for the purpose specified in
rule 101(1)(c) the name and location of the place at which escorted
absence is to be taken, and the exceptional circumstances which justify
escorted day absence under rule 101(1)(c).
(b) in relation to escorted day absence for the purposes specified in
rule 101(1)(a) the Governor has received confirmation that the near relative is
dangerously ill which confirmation must be given –
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4
(i) in writing by a registered medical practitioner;
(ii) where escorted day absence is required urgently, orally by a
healthcare professional;
…
(d) the Governor has not been made aware of any objections from any
victims of an offence or offences for which the prisoner is serving a sentence
which make it inappropriate to grant escorted day absence; and
(e) the Governor has not been made aware of any objections from any
persons residing in the community in which the prisoner will spend the
escorted day absence which make it inappropriate to grant escorted day
absence.
Persons to be treated as a near relative of the prisoner
4. For the purposes of escorted day absence the persons to be treated as near
relative of the prisoner are –
…
(e) a grandparent …
…”
For the purposes of rule 102 of the Prison Rules and rule 3 of the Direction “Governor”
includes the Deputy Governor (rule 3(1) of the Prison Rules and article 2 of the Direction).
[5] The petitioner was granted escorted day absence (“EDA”) to visit M in February 2018
and August 2018. The February 2018 application explained that M was not fit to travel. In
approving EDA the Deputy Governor observed:
“Not dangerously ill so does not meet requirements of Rule 101(a) but I am
approving exceptionally under 101(c) on this occasion only.”
The visit in August 2018 was EDA under rule 101(1)(a). At that time M was in hospital. The
application for that visit vouched that she was dangerously ill.
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5
[6] In December 2018 the SPS issued Supplementary Guidance for RMT Decision Makers
in relation to Progression and Community Access (“the Supplementary Guidance”).
(“RMT” is an acronym for Risk Management Team.) Paragraph 7.5 states:
“7.5 Community Access Activities
…
For illustrative purposes a table has been provided at Appendix 2 which outlines
community access classifications and establishments where community access can be
granted. For comprehensive details please refer to “The Prisons and Young
Offenders Institutions (Scotland) Rules 2011” and Directions.”
Appendix 2 provides in relation to rule 101:
“…
Where applications are genuine and appropriate offenders can:
●
Visit a dangerously ill near relative;
●
Attend the funeral of a near relative; and
●
Any other reason where the Governor is of the view that there are
exceptional circumstances.
●
An exceptional circumstance is likely to be a “one off event” of
personal significance to the prisoner i.e. linked to a significant change
in family circumstances or a positive opportunity linked to the
rehabilitation of the prisoner i.e. job or college interview.”
[7] In early 2019 the petitioner initiated a further EDA application to visit M. The SPS
wrote a pro forma letter to her GP on 27 February 2019 explaining the petitioner’s request to
visit M and asking whether she was dangerously ill. In the event that she was not, it asked
whether she was well enough to travel to HMP Shotts, or to a prison nearer her home. M’s
GP replied indicating that she was dangerously ill. In commenting on the application, the
petitioner’s Hall Manager indicated that he:
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“… has presented with no discipline issues and complies with the regime. It is
unclear from the GP information if there is an urgent need to arrange for Mr [S] to
visit his grandmother.”
The Intel Unit commented:
“Recently Mr [S] has been linked to the introduction and dealing of illicit articles.
His previous [EDA] passed without incident however.”
The Unit Manager did not approve the visit:
“There is no evidence to support that [M] is dangerously ill. And considering that a
visit was facilitated in Aug 18 I can see no reason to support this application in terms
of Rule 101.”
On 20 May 2019 the Deputy Governor refused the application, giving the following reason:
“No evidence to support this application in terms of exceptional circumstances.”
[8] In July 2019 the petitioner made a further EDA application. A letter from M’s GP
stated:
“I can confirm that [M] is a frail 98 year old nursing home resident with dementia.
[M] is on our palliative care register.”
A further letter from the GP indicated that M was not dangerously ill, but that she was not
able to travel to HMP Shotts or to any prison nearer to her home. The Intel Unit commented
on the application:
“Current intelligence links Mr [S] with drug supply and violence …”
The Unit Manager withheld his approval of the visit:
“No information recieved [sic] to meet criteria of Rule 101. Would not recommend
that this visit goes ahead.”
On 19 July 2019 the Deputy Governor refused to grant the petitioner’s request, giving the
following reason:
“Grandmother too ill to travel is not the reason for an [EDA] being approved.
Grandmother is frail and has dementia but not listed as dangerously ill. Does not
meet criteria on exceptional circumstances under Rule 101(1)(c)."
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[9] In January 2020 the petitioner applied for and was granted EDA to visit M because at
that time she was dangerously ill. The EDA was in terms of rule 101(1)(a) and it was
granted under rule 101(2).
The petition
[10] The petitioner seeks reduction of the decisions of 20 May 2019 and 18 July 2019. He
also seeks declarator that the decisions were in breach of article 8, et separatim article 8 taken
together with article 14, of ECHR; declarator that the scheme for EDA is lacking in certainty
so far as it breaches the petitioner’s Convention rights; reduction of the Supplementary
Guidance “in whole or insofar as it limits contact between the Petitioner and his
grandmother”; and declarator that the Supplementary Guidance is unlawful “in whole or
insofar as it limits contact between the Petitioner and his grandmother”. In relation to the
Supplementary Guidance, the petitioner maintains that the respondents have failed to
comply with the general public sector equality duty (“PSED”) under section 149 of the
Equality Act 2010 (“the 2010 Act”), and also with the specific public sector equality duties
under regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012
(“the 2012 Regulations”). Section 149 provides:
“149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to
the need to – (a) eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under this Act; (b) advance equality of opportunity
between persons who share a relevant protected characteristic and persons who do
not share it; (c) foster good relations between persons who share a relevant
protected characteristic and persons who do not share it.
…
(3) Having due regard to the need to advance equality of opportunity between
persons who share a relevant protected characteristic and persons who do not
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involves having due regard, in particular, to the need to – (a) remove or minimise
disadvantages suffered by persons who share a relevant protected characteristic that
are connected to that characteristic; (b) take steps to meet the needs of persons who
share a relevant protected characteristic that are different from the needs of persons
who do not share it; (c) encourage persons who share a relevant protected
characteristic to participate in public life or in any other activity in which
participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different
from the needs of persons who are not disabled include, in particular, steps to take
account of disabled persons’ disabilities.
…”
Regulation 5 states:
“5. Duty to assess and rev iew policies and practices
(1) A listed authority must, where and to the extent necessary to fulfil the
equality duty, assess the impact of applying a proposed new or revised policy or
practice against the needs mentioned in section 149(1) of the Act.
(2) In making the assessment, a listed authority must consider relevant evidence
relating to persons who share a relevant characteristic (including any received from
those persons).
(3) A listed authority must, in developing a policy of practice, take account of the
results of any assessment made by it under paragraph (1) in respect of that policy or
practice.
(4) A listed authority must publish, within a reasonable period, the results of any
assessment made by it under paragraph (1) in respect of a policy or practice that it
decides to apply.
(5) A listed authority must make such arrangements as it considers appropriate
to review and, where necessary, revise any policy or practice that it applies in the
exercise of its functions to ensure that, in exercising those functions, it complies with
the equality duty.
(6) For the purposes of this regulation, any consideration by a listed authority as
to whether or not it is necessary to assess the impact of applying a proposed new or
revised policy or practice under paragraph (1) is not to be treated as an assessment of
its impact.”
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The refusal of permission
[11] The Lord Ordinary ordered an oral hearing on the question of permission to proceed.
In fact, because of the intervention of the Covid 19 emergency, the hearing was conducted
by way of written submissions. On 24 March 2020 the Lord Ordinary refused permission .
He was not satisfied that the petition had a real prospect of success. In his view the Deputy
Governor had been entitled to refuse both applications. He was not persuaded that the
petitioner’s rights under articles 8 and 14 were engaged. In any event the refusals were
justified and proportionate. Further, they were spent. No purpose would be served by
reducing them. The petitioner could apply at any time for EDA, as he had done successfully
in January 2020. The Lord Ordinary rejected the petitioner’s criticisms of the Supplementary
Guidance. He reasoned that the petition was not an appropriate vehicle for raising what he
saw as being essentially theoretical questions under the Equality Act 2010. In his view those
questions had no practical relevance to the case.
The intervention
[12] The Commission for Equality and Human Rights (“the Commission”) was granted
leave to intervene in the appeal by way of written submissions. It explained that the
proceedings raise important issues about (i) the effect of the PSED in policy formulation by
public bodies; (ii) the proper approach to prisoners’ Convention rights; and (iii) the
application of the test for permission in section 27B of the Court of Session Act 1988.
[13] The Commission submitted that the respondents are a public body to whom the
general and specific public sector equality duties apply (2010 Act, schedule 19;
2012 Regulations, schedule 1). They must aim (i) to eliminate discrimination and any other
conduct prohibited by the 2010 Act, and (ii) to advance equality of opportunity between
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persons who share a relevant characteristic and persons who do not share it (2010 Act,
section 149(1); R (on the application of Hurley and Moore) v Secretary of State for Business
for Work and Pensions [2013] EWCA Civ 1345). They are obliged to assess the impact of any
policy (such as the policies in the Supplementary Guidance) against the needs mentioned in
section 149 of the 2010 Act; and in developing any policy they must consider evidence
relating to persons who share relevant protected characteristics (2012 Regulations, reg 5).
Disability is a relevant protected characteristic (section 149(7)). It was notable that the
respondents had not produced an Equality Impact Assessment (“EIA”) . The document
lodged was a mere summary. It did not meet the requirements for an EIA under reg 5 of the
2012 Regulations. In view of the importance of the role of the general and specific public
sector equality duties when formulating the Supplementary Guidance, and the potentially
wider circumstances in which that document might continue to apply, it had not been
sufficient for the Lord Ordinary to say (i) that the petition was “not an appropriate vehicle
for raising what are essentially theoretical questions under [the 2010 Act],” and that they
“have no practical relevance in the circumstances of the present case.”; and (ii) that the
petition concerned “two spent and historic decisions that are no longer of any practical
relevance.”
[14] The PSED is designed to alter behaviour in policy development and decision-
making, rather than to enforce particular rules or achieve particular results. It aims “to
bring equality issues into the mainstream of policy consideration” (Hurley and Moore,
paragraph 70 per Elias LJ) with a view to achieving substantive and not merely formal
equality. It does so by creating a continuing obligation on public bodies, in the exercise of
their “functions”, to pay “due regard” to equality issues. The general principles were
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distilled by Lord Neuberger of Abbotsbury PSC in Hotak v London Borough Council
[2016] AC 811 at paragraphs 72 to 80, quoted in part by the First Division at paragraph 83 of the
The term “function” has a wide meaning. It includes not only formulation of policy but also
Wilson LJ at paragraph 26). The PSED applies to an extremely wide range of functions. The
requirement to pay “due regard” is a requirement to pay “the regard as is appropriate in all
the circumstances” (Baker v Secretary of State for Communities and Local Government
[2009] PTSR 809, per Dyson LJ at paragraph 31). The PSED can have the effect that a power or a
discretion ought to be exercised in a particular way. A decision-maker must be aware of the
duty to have due regard to the relevant matters and the duty must be exercised in substance.
There should be a proper and conscious focus on the statutory criteria. A decision-maker
must assess the impact and the ways in which the duty may be fulfilled before adoption of a
proposed policy. The purpose of the equality duties set out in the 2012 Regulations is to
enable the better performance of the PSED. The PSED is of practical relevance in the present
case. It is not merely a “theoretical” consideration. The respondents are, through the SPS,
responsible for the management of prisons in Scotland. SPS’s functions have a direct impact
on numerous people, including prisoners and their relatives, all of whom are affected by
policies such as those contained in the Supplementary Guidance. Formulation of such
policies will engage the PSED to its fullest extent. In addition, decisions in relation to
individual applications for EDA engage the PSED. In the case of the respondents, the
specific duties are also engaged. In that regard, the document relied on by the respondents
as being an EIA is in fact merely a publication document intended to summarise the
decisions and actions taken in the EIA. The summary document does not meet the
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requirements for an EIA under reg 5 of the 2012 Regulations, and it does not evidence due
regard to the PSED. M is disabled. However, the circumstances in which the PSED may be
relevant are much wider than the petitioner’s own circumstances. In fulfilment of the PSED
the respondents were obliged to have due regard to the matters set out in section 149 of the
2010 Act.
[15] The refusal of EDA to visit an ailing relative constitutes an interference with a
article 8 rights et separatim his article 8 rights taken together with his article 14 rights were
engaged in respect of the refusals. The questions were whether the interference had a lawful
basis, pursued a legitimate aim, and was necessary in a democratic society.
Counsel’s submissions
[16] Mr Leighton submitted that permission to proceed ought to have been granted.
There was a real prospect of success. That was a modest hurdle. While he adhered to all of
the grounds of appeal and to all of the arguments in his note of argument, he developed the
following principal submissions. Contrary to the Lord Ordinary’s conclusion, the
petitioner’s EDA applications engaged his article 8, et separatim his article 8 taken with his
article 14, Convention rights. The petitioner’s article 8 right to family life (failing which his
Article 14 has a broad ambit (Steinfeld v Secretary of State for International Development 2020
AC 1, paragraph 18). It applies to all rights falling within the general scope of any
Convention article (Konstantin Markin v Russia (GC) [2012] EHRR 514, paragraph 124).
Refusal of the applications interfered with the petitioner’s Convention rights. The
interference had not been justified and proportionate. The root of the problem was that the
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Supplementary Guidance directed that EDA granted on the ground of exceptional
circumstances should involve one-off events. The difficulty with that was that where a near
relative was disabled and unable to visit prison it was likely to be a continuing scenario. A
one-off approach precluded a proper proportionality assessment (cf O’Neill v Scottish
Ministers 2015 SLT 820). In that respect the policy in the Supplementary Guidance was
was strongly arguable that it was unlawful. In so far as the one-off policy prevented the
petitioner from obtaining rule 101(1)(c) EDA it appeared to have been formulated without
due regard to the general and specific public sector equality duties. As a result of his
grandmother’s disability the petitioner suffered indirect discrimination by association (cf
CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2016] 1 CMLR 14, in
particular at AG 20). The non-disabled relatives of fellow prisoners could visit them in
prison, but the petitioner could not visit his grandmother . That also indicated that this
aspect of the Supplementary Guidance was unlawful. The petition raised matters which
were of ongoing practical relevance to the petitioner and to other prisoners who have
disabled relatives who are unable to visit prison. The petitioner would be likely to require
to seek rule 101(1)(c) EDA in the future.
[17] Mr Byrne indicated that, in response to the Commission’s criticism, the respondents
had now produced the full EIA which had been carried out by them. The Supplementary
Guidance did not contain an illegal policy. The reference to one-off events was no more
than guidance. It was not a free-standing rule or policy. Properly understood it did not
limit rule 101(1)(c) to one-off events. There was no rule or policy to that effect. Mr Byrne
accepted that there was no discussion in the EIA or elsewhere of how disabled relatives who
were unable to visit prison fitted in to the scheme for maintaining contact between prisoners
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and their near relatives. However, the policy had had due regard to the promotion of
equality between different groups. Application could be made under rules 101(1)(c)
and 101(2) to establish that there were exceptional circumstances which made an EDA
appropriate. The refusal of the applications in May and July 2019 had been justified by the
needs of security and good order (O’Neill v Scottish Ministers, supra). The petitioner’s other
applications for EDA had been granted. That showed that the system worked satisfactorily
in practice. The Deputy Governor had misspoken in January 2018 when he said that
rule 101(1)(c) EDA ought to be a one-off. In each case it was for the petitioner to make out a
case of exceptional circumstances. Rule 101 and the Supplementary Guidance were capable
of being operated in accordance with articles 8 and 14. The respondents had had due regard
to the general and specific public sector equality duties in formulating rule 101 and the
Supplementary Guidance. There was no foundation for the claim of indirect discrimination.
The petitioner’s “other status” as a person affected by M’s disability was so far removed
from the core characteristics protected by the Convention that little by way of justification
for the interference was required (R (RJM) v Secretary of State for Work and Pensions [2009] 1
AC 311, paragraph 5). The requirement to restrict a convicted prisoner’s absence from the
security of the prison estate to those circumstances identified in rule 101 was sufficient
justification. Covid 19 had now resulted in the introduction of new measures. On 15 June
2020 the Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment
Rules 2020 came into force. The amended Prison Rules permit virtual visits. They authorise
personal communication devices and in -cell telephony to enable prisoners to maintain
contact with family and friends during times when actual physical visits to a prison are not
possible. Prior to this change a relative who wished to video-conference a prisoner had to
go to an SPS nominated location. Since the change travel to such locations was no longer
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necessary - a relative could use their own personal device to access a video-conference. It
was open to the petitioner to make a further application for EDA at any time. In those
circumstances judicial review would be of no practical benefit to him (cf King v East Ayrshire
Council 1998 SC 182, at page 194). The amended rules would remain in place after the lifting
of Covid restrictions.
Decision and reasons
[18] This court requires simply to consider whether to grant permission for the
application to proceed (section 27D(3) of the 1988 Act; PA v Secretary of State for the Home
that … the application has a real prospect of success” (section 27B(2)). In Wightman v
Advocate General 2018 SC 388 Lord President Carloway discussed what that involved (at
paragraph [9]):
“The new test is certainly intended to sift out unmeritorious cases, but it is not to be
interpreted as creating an unsurmountable barrier which would prevent what might
appear to be a weak case from being fully argued in due course. Of course the test
must eliminate the fanciful, but it is dropping the bar too low to say that every
ground of review which is not fanciful passes the test … The applicant has to
demonstrate a real prospect, which is undoubtedly less than probable success, but
the prospect must be real; it must have substance. Arguability or statability, which
might be seen as interchangeable terms, is not enough ….”
The question is one that depends to a significant degree on impression informed by
experience, and it is open to the court to form a different view from the Lord Ordinary (PA v
Secretary of State for the Home Department, supra, paragraph [33]).
[19] We are conscious that we have had advantages which the Lord Ordinary did not
have. We have had the benefit of oral submissions and of fuller written submissions
(including those lodged by the Commission). However, in our view this is not the time for
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detailed analysis of the competing arguments. It suffices to say that we are satisfied that the
petition has enough substance to justify the conclusion that there is a real prospect of
success. There are significant difficulties which the petitioner will have to overcome if he is
to succeed, but our judgment is that it would be going too far too fast to hold at this stage
that those difficulties are insurmountable. Likewise, in view of the range of remedies which
the petitioner seeks, we think that it would be precipitate to say that success would have no
practical consequences for him (or for other prisoners who may be affected by similar
circumstances). We have in mind, in particular, that the petitioner is likely to make future
EDA applications, and that the Supplementary Guidance is likely to play a part in the
determination of such applications.
Disposal
[20] The court will allow the appeal, recall the interlocutor of the Lord Ordinary dated
24 March 2020, and grant permission to proceed. All questions of expenses are reserved
meantime.