O'Neill & Anor, Re Judicial Review [2015] ScotCS CSOH_144 (28 October 2015)

O'Neill & Anor, Re Judicial Review [2015] ScotCS CSOH_144 (28 October 2015)

Rule 63(8) is not unlawful per se, but the lack of explanatory context and general policy renders the inter-prison visiting regime as a whole unlawful due to insufficient legal certainty; the 'exceptional circumstances' provision is compatible with Convention rights if adequately contextualised, but the current regime fails to inform prisoners and staff of criteria for successful applications.

Citation
[2015] ScotCS CSOH_144
Parties
Petitioner: Charles O’Neill; Petitioner: William Lauchlan; Respondent: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
28 October 2015
Procedural Posture
Judicial Review / Supplementary Opinion
Outcome
Petition refused
Legal Topics
Article 8 ECHR, Inter Prison Visits, Legal Certainty, Discretionary Decision Making, Ultra Vires
Human Rights Prison Law Administrative Law Article 8 ECHR Inter Prison Visits Legal Certainty Discretionary Decision Making Ultra Vires

Case Brief

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Parties

Charles O’Neill

Petitioner

William Lauchlan

Petitioner

The Scottish Ministers

Respondent

Procedural Posture

Judicial Review / Supplementary Opinion

Legal Issues

  1. 1 Whether rule 63(8) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 is ultra vires or incompatible with Convention rights
  2. 2 Whether 'exceptional circumstances' as a criterion lacks legal certainty
  3. 3 Whether the inter-prison visits regime is lawful and human-rights compliant

Ratio Decidendi

Rule 63(8) is not unlawful per se, but the lack of explanatory context and general policy renders the inter-prison visiting regime as a whole unlawful due to insufficient legal certainty; the 'exceptional circumstances' provision is compatible with Convention rights if adequately contextualised, but the current regime fails to inform prisoners and staff of criteria for successful applications.

Court Disposition

Petition refused

Orders

  • Petitioners' claim rejected
  • Pleas of Scottish Ministers sustained