Convict takes Executive to court over 'embarrassing' telephone warning

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A SERIAL offender serving 21 years in jail is spearheading the latest legal challenge for prisoners' rights in Scotland - complaining that outgoing telephone calls carry a pre-recorded warning.

After a lengthy battle to secure thousands of pounds in legal aid, Stewart Potter, 43, has taken a case to the Court of Session in Edinburgh, claiming the phone message "is an ... embarrassing reminder to his family" that he is calling from prison.

The message - introduced in 1999 and rolled out to all jails in 2004 - states: "This call originates from a Scottish prison. It will be logged and may be recorded and/or monitored. If you do not wish to accept this call, please hang up."

Potter, whose latest offence involved holding a knife at the throat of a shop manageress, says his human rights are being breached by the message which causes "an additional level of discomfort" for him in his dealings with the outside world.

The Scottish Executive has suffered two defeats in recent court cases concerning prisoners - on slopping-out and voting - and ministers are themselves invoking the European Convention on Human Rights (ECHR) to try to avoid an unwanted hat-trick.

They maintain that people such as the victims of prisoners have a right to the protection the telephone message can provide against unwanted nuisance calls.

The case opened yesterday, but it is likely to be the summer before a judgment is delivered.

Potter, of Yoker, Glasgow, has served previous sentences of four, six and eight years and was given a nine-year term in 2001 for armed robbery.

In 2002, he stood trial for another robbery, committed just before the nine-year sentence had been imposed.

In that case, he threatened the manageress of a Glasgow off- licence with a knife, then ordered her and a customer into a toilet. He fled with 292 but was arrested after police used CS gas spray to disarm him.

He was jailed for 12 years, to begin at the end of the nine-year sentence.

In the Court of Session action, Potter, currently in Glenochil prison, is asking for a ruling that imposing the message on his outgoing calls is incompatible with his rights under the ECHR, and is unlawful.

Aidan O'Neill, QC, for Potter, said there had been several complaints to the prisons ombudsman, and a number of inmates had sought legal aid to challenge the message in court. Legal aid was finally granted to Potter in August last year, and his petition was to be treated as a test case.

Article 8 of the ECHR decrees: "Everyone has the right to respect for his private and family life, his home and his correspondence." In Potter's petition, it is alleged that the pre-recorded message interferes with his private and family life and, in particular, with his ability to communicate with his family.

People he had called, such as his children's school and social workers, were alerted to the fact he was in prison when that information was irrelevant, the petition says, adding: "It is very important for him to try to maintain contact with his family and friends while in prison. If he were to call a friend or relative at work, he might embarrass them if the call were to be picked up by their colleagues unaware of the fact that the friend or relative knew somebody in prison."

The Executive argues that the message "does not intrude into the substance of the prisoner's telephone call". Cathy Jamieson, the justice minister, has advised parliament that the prison service believes it provides "victims or vulnerable witnesses with some safeguard against unwanted calls".

Kenny MacAskill, the SNP's justice spokesman, last night described the case as "utterly ludicrous".

He said: "These litigations must cease or must be funded by the prisoners themselves or those who wish to benefit from the case."


• What is the Scottish Legal Aid Board (SLAB)?

SLAB runs the legal aid system in Scotland and is independent of the Scottish Executive. It considers applications for legal aid and, if they meet tests set by parliament, grants them.

• How many people are on the board?

There are 15 board members who oversee the work of more than 300 staff, who make the actual decisions on applications. The 15 serve part-time and two are advocates, one is a sheriff, four are solicitors and eight are lay members.

• How are they appointed?

They are made board members by the Scottish ministers and usually are appointed for four years.

• What are the criteria for deciding whether to fund a case?

In civil actions, like yesterday's judicial review by the prisoner, the applicant has to meet financial eligibility limits, and SLAB has to be satisfied that there is a legal basis for a case.

• How much does legal aid cost the taxpayer?

In the 2005-6 financial year, the total spent on legal aid was just under 148 million, with 104 million on criminal legal aid, 39.5 million on civil legal aid and 4.3 million on children.