Judge backs armed robber in fight over jail phone message

A PRISONER who claimed that a recorded message on phone calls from jail was an unlawful invasion of his privacy has won his case, provoking fury from politicians who said the case amounted to an "outrageous" waste of money.

Stewart Potter, 43, who is serving 21 years for assault and armed robbery, claimed the recorded message was "an unnecessary and embarrassing reminder" of where he was phoning from.

In a ruling on the legal challenge, Lord Glennie said people were not stripped of their basic rights simply because they had been jailed, and he held that the Scottish Prison Service did not have the authority of parliament for its policy of attaching the warning to all telephone calls.

Annabel Goldie, the Scottish Tory leader, claimed the rights of prisoners were being promoted above those of the law-abiding and said the ruling had made Scotland "a laughing stock".

"She said: "Prisoners forfeit a number of rights when they go to jail, which should include the ability to dictate on what terms they make a phone call."

Ken MacAskill, the SNP's justice spokesman, said: "This is outrageous. People who breach the law must pay the price. Taxpayers' money is being used to fund these legal aid cases, money which could be going to help vulnerable people in need of legal representation. A line needs to be drawn now."

But Potter's solicitor last night insisted it was politicians who should be held responsible for failing to heed repeated warnings that the system breached human rights.

Tony Kelly said: "Mr Potter was subjected to vilification for having taken this challenge, but the judgment is a vindication of his position.

"One of the most telling comments is the judge saying the policy had been taken to the Scottish Prison Complaints Commission in 1999 and 2005 and the commissioner upheld the challenge, and the Executive did nothing about it."

Mr Kelly said compensation was "not on the agenda" but added that prisoners could be entitled to submit claims if the prison service ignored Lord Glennie's ruling.

John Scott, chairman of the Howard League for Penal Reform in Scotland, claimed ministers were paying the price for failing to act on prior warnings.

"They could have spent a small amount of money fixing the problem, but chose to do nothing because that would have made them look soft on crime," he said. "But that decision means they are having to pay much more in legal fees."

Potter, who had been granted legal aid to pursue his case in the Court of Session in Edinburgh, complained that each time he made a call from Glenochil prison, the recipient was informed: "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 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 armed raid, committed just before the nine-year sentence had been imposed, and was jailed for 12 years, to begin after the nine-year sentence.

Article 8 of the European Convention on Human Rights decrees that "everyone has the right to respect for his private and family life, his home and his correspondence".

The judge said other safeguards were in place to combat "unwanted calls", including restricting them to 20 pre- approved numbers and recording conversations. He said if it were considered necessary also to apply the warning, that could be done on a case-by-case basis.

Lord Glennie commented: "Of course, telephones have not always been available to prisoners, and it might once have been thought that access to a telephone was a privilege, but times have moved on."

He added: "The right to respect for private and family life is a civil right at common law. By whatever name we choose to call it - basic right, fundamental right, constitutional right - it is one of the rights which the common law has long recognised as inherent in a free and democratic society.

He said that in some societies it might be "obvious" that a prisoner be deprived of his civil rights.

But he added: "Such a notion has no place in our society."

Lord Glennie said it had been laid down by previous judgments, including by the House of Lords, that a prisoner retained his civil rights unless they were removed by legislation.

He said: "If that were not the position, a person sentenced to a period of imprisonment could, with impunity, be subjected to arbitrary discipline and to all manner of abuse.

"As Aidan O'Neill, QC, on behalf of [Potter] observed, prison is the punishment, it is not for punishment. If the prisoner is to be deprived of civil rights other than those inherent in the face of his being deprived of his liberty, that requires to be done by, or with the clear authority of, parliament."

Potter complained that if he telephoned his children's school, the message could be heard by someone who did not know he was in prison. When he called home, the message constantly told his family he was in prison. If he called a friend, it might be answered by someone else in the house, who was unaware the friend knew a prisoner.

Scottish ministers argued the message was lawful under the Prisons (Scotland) Act 1989, which permitted rules "for the management of prisons" and the "discipline and control" of prisoners.

A spokesman for Victim Support Scotland said: "The public wants to know that the victims of crime are protected. I think we should be satisfied with the judge's ruling, as long as proper checks on phone calls remain."

The Scottish Prison Service is expected to appeal.

• A CONVICTED murderer will attempt to halt the Holyrood election on 3 May in a court action which will be heard less than a fortnight before the country goes to the polls.

Derek Traynor, 42, a "lifer" in Shotts Prison, wants 2,000 damages if the election goes ahead as planned and he is made a "victim" by not being allowed to vote because he is in jail.

His case, and a similar action by another Shotts inmate, James Fisher, who is serving a nine-year sentence, went before Lord Clarke in the Court of Session in Edinburgh yesterday.

Aidan O'Neill, the men's QC, said he was ready to argue for an order to stop Scottish ministers from "carrying out any act to facilitate or promote the holding of the election". However, in discussions, he had listened to what lawyers for the Scottish ministers and the Scottish Secretary had to say, and it had been agreed the two-day court hearing should begin on 24 April.

Mr O'Neill said a similar case in Northern Ireland had been dismissed because prisoners had left it too long and a hearing would be too close to an election. He added: "We don't want that argument held against us. We agree with some reluctance [to an April hearing]."

Lord Davidson, QC, the Advocate-General for Scotland, appearing on behalf of the Scottish Secretary, said the order authorising the Scottish election had been laid before Westminster by the Scottish Secretary on 7 February, but the petitions by the two prisoners had emerged only last week.

Court action to try to stop the election, and damages claims by prisoners, had been predicted earlier this year after a ruling by three appeal judges in the Court of Session. In 2005, a blanket ban on voting by prisoners was declared unlawful by the European Court of Human Rights. The UK government vowed to change the system, but the timetable fell behind schedule. As a result, the government conceded changes would not be made by the time of the Holyrood election.

The appeal judges upheld a complaint by a prisoner, and issued a formal reprimand to the government.

• PART-TIME farmer Lord (Angus) Glennie has shown a clear determination to plough his own furrow during two years on the Bench.

The Cambridge graduate, whose 30-year career as counsel had seen him appointed a QC on both sides of the Border, gave notice of an independence of mind within a few weeks of being elevated to the office of Supreme Courts judge in Scotland.

A man facing serious assault charges jumped bail and failed to turn up for trial. Police took more than three years to pick him up on a warrant, and his lawyers argued that his right to have the case heard within a reasonable time had been violated.

Some judges in their "settling in" period might have been tempted to let the case proceed and leave it to the appeal court to settle the issue, but Lord Glennie, 56, took the bull by the horns and ended the prosecution.

Later, he adopted a singular approach to granting restraint orders against alleged drugs offenders. Those orders freeze assets until a prosecution has been concluded, and in a case before Lord Glennie the Crown followed its normal course and sought an all-embracing order to include a man's home and his bank account.

Not for the first time, the judge was prepared to grant only a modified order, which allowed the man to retain reasonable living expenses.

Prison warning never had any legal basis

THIS challenge was initially brought under Section 6 of the Human Rights Act 1998 because it is unlawful for the prison service, or any other public authority, to act in a way that is incompatible with the European Convention on Human Rights.

Section 57(2) of the Scotland Act 1998 repeats this requirement in relation to the Scottish Executive.

Article 8 of the convention provides that everyone has a right to respect for their family life, home and correspondence.

When someone is imprisoned, one part of these rights is taken away as the person is deprived of liberty. However, prison is the punishment; prison is not for punishment.

It follows that a prisoner is not lawfully deprived of his civil rights other than those affected in the fact of his being deprived of his liberty. Such rights as are taken away can be removed only with the express and clear authority of parliament.

The message that precedes prisoners' phone calls is not necessary to protect the public or prevent abuse, since calls are still monitored and recorded, but it may cause hurt to the innocent, such as family members, or embarrassment to children at school.

The legislation that deals with the conduct of prison regimes and prisoners is found in the Prisons (Scotland) Act 1989, section 39 of which allows for rules to be made "for the management of prisons and other institutions". There are also rules that deal with communication. None provides for a pre-recorded message of the type used.

Despite this, a "direction" was made by the prison authorities requiring the use of the pre-recorded message. It is clear there has never been a legal basis for such a direction.

It follows that the court did not even have to address the matter of the European law, as it is not authorised by our own law. Such acts by public authorities are not permitted in our law and are usually described as ultra vires (beyond their powers).

I have no doubt that the practice is also contrary to the objectives set out in Article 8 of the convention.

Some may believe that actions of this nature are unnecessary and a waste of public money.

I agree in this case, but only because the prison authorities ought to have heeded the warning they had been given twice by the prisons commissioner. After all, there is little point in having a prisons commissioner whose decisions and recommendations are ignored.

Jim Keegan

• MINISTERS have already suffered two defeats in recent court cases concerning prisoners - on slopping out and voting rights.

In February, Jack McConnell, the First Minister, revealed that more than 2 million from the public purse has gone to prisoners challenging human-rights issues over the past seven years.

Robert Napier, an armed robber, was awarded 2,450 in damages after raising a successful claim against Scottish ministers over slopping out, paving the way for a potential damages bill stretching to millions of pounds.

Lord Bonomy ruled that the practice infringed Napier's human rights and made his eczema worse.

The Scottish Prison Service has paid 2,100 each to 190 prisoners who claim their human rights have been breached.

The SPS pay-outs were offered only to prisoners who were forced to share a cell for much of the day.