Scottish High Court of Justiciary Decisons

Dudley v. Her Majesty's Advocate [2003] ScotHC 5 (7 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Cameron of Lochbroom	Appeal Nos: C57/02 XC352/02 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEAL AGAINST CONVICTION by FIONA JACQUELINE MUNRO DUDLEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: J. Carroll, Solicitor Advocate; Carr & Co.

Respondent: J. Johnston, A.D.; Crown Agent

7 February 2003

1. The appellant was convicted after trial of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The appeal against conviction turns on the Sheriff's determination to admit evidence led by the Crown from a police officer relating to the circumstances in which the appellant came to be detained and searched by police officers when she went to visit a prisoner at Shotts Prison on 17 May 1999 and was found to be in possession of a quantity of diamorphine, a controlled drug in terms of the Misuse of Drugs Act 1971.
2. At the trial objection was taken on the appellant's behalf to the admission of the evidence, under reference to a Minute dated 24 October 2001 in terms of which the appellant asserted that the evidence had been obtained in breach of the appellant's rights under the European Convention on Human Rights and, in particular, her rights under Articles 6 and 8 of the Convention. The substance of the objection is set out in the Sheriff's report as follows:

"The alleged breach of Article 8 concerned an alleged conversation between the appellant and an inmate of Shotts prison, the terms of which led to the prison authorities, of their own volition, alerting the police to the prospect of an offence taking place, namely the supply of drugs to an inmate. I was told that, for the purposes of the debate, it was agreed between the parties that there had been interception of a telephone conversation between the appellant and an inmate resulting in her detention and search when she visited the prison. It was agreed that there had been a telephone call from the inmate to the appellant. It was accepted that, as a matter of routine, the prison outgoing calls were monitored. As a consequence thereof, a conversation between the appellant and an inmate was intercepted by the prison authorities. As a result of this conversation a prison officer reported the prospect of drugs entering the prison to the police. There was no suggestion that the police or prison authority had any prior interest in the appellant. There was no suggestion that any interception had taken place at the instance of the police. There was no specification as to the terms of the conversation. In particular, it was not said that the prison authorities were alerted because of something she allegedly said or something that was allegedly said to her."

3. The Sheriff, having heard argument and proceeding on the agreed narrative, determined that there had been no breach of the appellant's rights under Article 8(1) of the Convention. He found that while there had undoubtedly been interference with the prisoner's rights, that had not transmuted into interference with the rights of all others that he communicated with. He went on to say that even if he were wrong in so holding, it had been conceded for the appellant that even had there been a breach of Article 8(1), the question of admissibility was still at large. In such an event, he rejected the argument that there was no law governing the question of telephone surveillance, there being law in the form of the provisions of the Prisons (Scotland) Act 1989 and the regulations made thereunder. That law was clear and accessible. There was no reason why the appellant did not have access to the law. In the whole circumstances he dismissed the Minute and held that the evidence complained of was admissible.
4. It only remains to note that having repelled the objection, evidence was led from the police officer concerning the finding of controlled drugs upon search of the appellant and from other witnesses. The Sheriff records that the only evidence relating to interception of outgoing telephone calls from the prison came from a prison security officer. This witness said that there was no record or recording kept of telephone calls. Calls were recorded but, by rotation, the tapes were recorded over within about one month. He had monitored an outgoing call from an inmate, Gary Moore, which led him to contact the police. He could not remember any detail of the conversation. He could not recall whom the prisoner had called or the sex of the recipient. He said that from memory the call was to a Perth telephone number and he had alerted the Perth police.
5. Article 8 of the Convention provides so far as relevant as follows:

"1. Everyone has the right to respect for his private ... life, ... and his correspondence.

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 ... public safety ... for the prevention of disorder or crime, ... or the protection of the rights and freedoms of others."

6. The first ground of appeal as expounded before the second sift is in the following terms:

"1. Ground of Appeal No 1 - This ground strikes at the denial of respect for the rights of the appellant under Article 8(1) of the Convention which, if established to be the case, strikes at the use of the evidence obtained thereby at her trial. At the time of the events in question, 17 May 1999, the prison authorities were not covered by and nor did they follow any law or practice, conform to the requirements of Article 8(2). It appears from the report of the Sheriff, paragraph 9, that the evidence disclosed that the prison authorities kept no record of the calls made to and from the telephone that lies at the centre of this complaint. The absence of any records by which a person may ascertain whether her rights have been violated is a serious deficiency. It is confirmed that not only was there no actual record but the witness O'Neill could not even remember any detail of the call. He could not remember the sex of the recipient of the call that had been made by the prisoner. If there had been ECHR compliant law in Scotland that permitted the prison authorities to listen to calls to Miss Dudley by a prisoner and thereafter use the information obtained thereby there would still be a violation of Article 8(1). This would be on the general proposition that the law had not been properly used and the Appellant's rights to have the actions of the State examined by an independent body had been defeated.

2. In the Sheriff's report at page 6, he states that a member of the public

is warned that the call originates from a prison and asked whether they will accept the call. It is understood that this flowed from an inaccurate statement from the prosecutor. According to information available and submitted by Counsel at the trial (see page 10 of the Sheriff's report) no evidence was led or could have been available about this. This is important since it undermines any suggestion that the appellant knowingly surrendered her rights under the Convention.

3. At paragraph 29 of the Report, the Sheriff states that the rights of Gary Moore had been subject to interference but not those of Miss Dudley, the appellant. It must be assumed that he considers that Article 8(2) affords a legitimate basis for the interference. If that is so then the examination of the "law" to which he refers later in his report is required. At paragraph 30 the Sheriff founds upon the Prisons (Scotland) Act 1989 and regulations made thereunder. He also states that the prison authorities had gone to the lengths of placing a reminder beside the prison telephone. Section 39 of the 1989 Act empowers the Secretary of State to make rules for the management of prisons but did not expressly provide for the monitoring of telephones, that being referred to, but not provided for, in the Prisons and Young Offenders Institutions (Scotland) Rules, paragraph 54. This rule provides that a prisoner may have the use of a telephone subject to the provisions of paragraph 54(2). This does not make any further rules but states that the use of a telephone would be subject to directions which the Secretary of State may make. These directions were produced to the court during the course of the trial by the prosecutor and are called "DIRECTION - THE PRISONS AND YOUNG OFFENDERS INSTITUTIONS (SCOTLAND) RULES 1994 - RULE 54(2)" This is the direction founded upon by the prosecutor at the trial but it has to be noted that they did not come into force until 11^th August 1999. The offence is alleged to have occurred on 17^th May 1999 and the interference complained of is said to have occurred several days before that. The "reminder" to which the Sheriff referred was also produced by the prosecutor. It is one of the two schedules attached to the direction and like the direction itself it could not have been in place at the time of the interference with the appellant's rights on or before 17^th May 1999. In these circumstances, the Sheriff's assertion that there was no reason why the appellant did not have access to the law cannot be reconciled with the facts. It must be rememberd (sic) that a complaint under Article 8(1) of the convention need not involve any actual interference, merely a complaint that there is no protection against interference. The violation is brought about by a denial of respect and actual interference is but one way of establishing a denial of respect."

7. In presenting submissions in support of this ground of appeal, Mr. Carroll, solicitor advocate, drew attention to the fact that from the documents produced before the Sheriff, it appeared that the Sheriff had proceeded on the basis that there was statutory warrant for the monitoring of prisoners' telephone calls to be found in the powers given to the Secretary of State to make Rules for the management of prisons and other institutions in terms of section 39 of the Prisons (Scotland) Act 1989 ("the Act"). These powers had been exercised when the Prisons and Young Offenders Institutions (Scotland) Rules 1994 ("the Rules") had been made. Rule 54 was concerned with communication by telephone. It provided as follows:

"54.-(1) A prisoner may have the use of a telephone subject to the provisions of paragraph (2).

(2) A prisoner's entitlement to the use of a telephone shall be subject to the provisions of any direction which the Secretary of State may make in relation to-

(a) the groups or categories of prisoners who may have the use of a

telephone;

(b) the times of day and circumstances in which a telephone may be

available for use;

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

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

telephone calls made by a prisoner.

(3) Where an officer informs a prisoner that he may not have the use of a telephone by virtue of the provisions of any direction as mentioned in paragraph (2), he shall also inform the prisoner of the reasons for that decision."

8. Mr. Carroll informed us that the Direction which was referred to before the Sheriff was the Prisons and Young Offenders Institutions (Communication by Telephone)(Scotland) (No.2) Direction 1999 made by the Scottish Ministers in their exercise of the powers in terms of the Act and the Rules. This Direction came into force on 11 August 1999, that is to say, after the date of the commission of the offence with which the appellant was charged. However, in the course of the appeal the court noted that, in terms of paragraph 1(4) of the foregoing Direction, it was specifically provided that the Prisons and Young Offenders Institutions (Communication by Telephone)(Scotland) Direction1999 was thereby revoked. This latter Direction was in force on 17 May 1999. Paragraph 7 provided, amongst other things, that the Governor of a prison was to make arrangements for the logging, monitoring and recording of calls made by prisoners using telephones. In particular, the paragraph provided for an officer authorised by the Governor to monitor any call made by a prisoner using a telephone by listening during, and by tape recording of, such a telephone call. In addition, it provided that if the Governor was of opinion that a telephone call made by a prisoner related, or might have related, to any criminal activity of which the police should be aware, he should forthwith inform a constable of the police force for the local area of the details of the call and might provide the constable with a copy of any tape recording of the call. A schedule to the Direction specified the terms of a notice which was required to be placed beside the phones which prisoners were entitled to use. The notice made clear that in using the phone the prisoner was deemed to have given his prior consent to the logging, monitoring and tape recording by any means of any calls made. These provisions were repeated almost verbatim in the subsequent Direction, the only material addition being that, in the case of PIN number phones, the Governor might if he considered it appropriate arrange for all telephone calls to be preceded by a recorded telephone message which advised the recipient of the telephone call that the call was coming from the prison and that the recipient should stay on the line to accept the call or hang up to reject the call.
9. The substance of Mr Carroll's submission was, firstly, that what was done was not in accordance with law and, secondly, even if it was, that there had been a violation of the appellant's rights under Article 8(1) of the Convention in that she had not been made aware that her conversation with the inmate would be monitored. It was said that in the absence of any record kept of the call or of the communication by the prison authorities of information to the police, there was no way in which it could be determined whether what was done by the prison authorities was right or wrong. Further, in the absence of any warning to the recipient of the call that the call was liable to be monitored and listened to, let alone to be tape recorded, there was a breach of the appellant's rights under Article 8(1). The Sheriff had determined the matter on the basis that what had been done was in accordance with the law. That had not been shown to be the case. It was insufficient to hold, as the Sheriff had done, that it was the prison telephone that had been interfered with, so that the fact that the police ended up with information on which they acted was a mere by-product of legitimate monitoring of a prison originated telephone call.
10. In our opinion, these submissions are not well founded. The telephone call was made by the prisoner from within the prison. It was monitored within the prison by an officer there. The prisoner had notice that any telephone call which he made from the prison telephone might be monitored, listened to and even tape recorded. There was no prohibition against his advising the recipient of his call of this fact. There was no suggestion that the monitoring or recording of his telephone call was secret or covert in the sense in which that word is used by the European Court on Human Rights in the case of P.G. and J.H. v. The United Kingdom ( no.44787/98 unreported 25 September 2001) founded on by Mr. Carroll. There was no suggestion that the interest of the prison or police authorities was directed to the appellant prior to the monitoring of the telephone call. There was no act of trespass upon the property of the appellant as the recipient of the call.
11. The real and substantial question which arises in this appeal is whether, on the basis that monitoring by a public authority of a telephone call between two persons involves an intrusion upon their conversation and hence upon their private lives and, thus, a violation of each individual's right to private life in terms of Article 8(1), the intrusion upon the conversation of the inmate of the prison and the appellant and the subsequent passing of information derived from that conversation by the prison authorities to the police was in accordance with domestic law. We are in no doubt that the evidence to which objection was taken was admissible as having been derived from information obtained in accordance with domestic law as contained in the relevant section of the Act, in the Rules made thereunder and in the statutory Direction made under the Rules that was in force at the relevant time. The information itself formed no part of the case in evidence against the appellant. This was a case in which, unlike that of P.G. and J.H. v. The United Kingdom, there was in force at the relevant time a statutory system to regulate the monitoring, listening to and recording of telephone calls made from prison by a prisoner, a system which made provision for the reporting to others of information derived from such monitoring only in specified circumstances. The prisoner was reminded of that system by notice on any occasion on which he used the telephone. The recipient of any telephone call was at liberty to refuse to answer the call and if the call was answered, must be held to have been aware of the statutory system. Within that system reporting of the details of any conversation to any authority outwith the prison only took place where there was reason on the part of the prison authorities to consider that criminal activity might be involved and, in that event, the report was made only to the police authorities. It is clearly necessary in a democratic society for the purposes of control and good order within prisons that information concerning the possible introduction into the prison of controlled drugs in contravention of the Misuse of Drugs Act 1971 should be passed by the prison authorities to the police authorities for investigation and that for the purpose of the prevention of disorder or crime within the ambit of Article 8(2). We therefore reject both of Mr. Carroll's submissions directed to the first ground of appeal.
12. Mr. Carroll also alluded to the remaining grounds of appeal but, when pressed upon the matters raised by each of the second and third grounds of appeal, he accepted that each depended upon the question raised in the first ground of appeal being answered in his favour. We do not find it necessary to consider these grounds of appeal further. As regards the fourth ground of appeal, it is noteworthy that in his report the Sheriff does no more than explain that he did not prepare and issue detailed reasons for his decision. He does not suggest or indeed accept that he did not give reasons. He contents himself with recording that he has no recollection of what he actually said at the time of dismissing the Minute and repelling the objection, save that it was not lengthy. No attempt has been made to produce a transcript of the proceedings at the time when he heard the debate and announced his decision. In the absence of any such transcript we are wholly unable to accept that the Sheriff announced his decision without giving any reasons, even within the briefest of compass.
13. For the foregoing reasons we shall refuse the appeal.