Potter (AP) v The Scottish Ministers [2010] ScotCS CSOH_85 (06 July 2010)

Potter (AP) v The Scottish Ministers [2010] ScotCS CSOH_85 (06 July 2010)

The court held that the mandatory pre-recorded message identifying prisoner calls as originating from a Scottish prison constitutes an interference with the petitioner's Article 8 rights. However, the interference is in accordance with law, is proportionate, and is necessary in a democratic society for the prevention of disorder or crime and the protection of the rights and freedoms of others. The Directions and the Governors' actions are not ultra vires under the Human Rights Act 1998 or the Scotland Act 1998.

Citation
[2010] ScotCS CSOH_85
Parties
Petitioner: Stewart Potter (A.P.); Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
06 July 2010
Procedural Posture
Petition for Judicial Review / Opinion After Second Hearing
Outcome
Petition refused
Legal Topics
Article 8 ECHR – Right to Private and Family Life, Prisoner Communications, Legality of Prison Rules and Directions, Proportionality of Interference With Rights
Human Rights Law Prison Law Administrative Law Article 8 ECHR – Right to Private and Family Life Prisoner Communications Legality of Prison Rules and Directions Proportionality of Interference With Rights

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Parties

Stewart Potter (A.P.)

Petitioner

The Scottish Ministers

Respondents

Procedural Posture

Petition for Judicial Review / Opinion After Second Hearing

Legal Issues

  1. 1 Does the mandatory pre-recorded message on prisoner telephone calls, identifying the call as originating from a Scottish prison, constitute an interference with Article 8 ECHR rights?
  2. 2 If so, is that interference 'in accordance with law' and 'necessary in a democratic society'?
  3. 3 Are the 1999 and 2008 Directions and the Governors' actions ultra vires under the Human Rights Act 1998 and the Scotland Act 1998?

Ratio Decidendi

The court held that the mandatory pre-recorded message identifying prisoner calls as originating from a Scottish prison constitutes an interference with the petitioner's Article 8 rights. However, the interference is in accordance with law, is proportionate, and is necessary in a democratic society for the prevention of disorder or crime and the protection of the rights and freedoms of others. The Directions and the Governors' actions are not ultra vires under the Human Rights Act 1998 or the Scotland Act 1998.

Court Disposition

Petition refused

Orders

  • No declarator granted; the 1999 and 2008 Directions and the Governors' actions are not unlawful or ultra vires.
  • No further orders made.