Petitions for judicial review in respect of alleged breaches of Article 8 of the European Convention (right to respect for private and family life) submitted by serving prisoners seem to be very much in vogue.
At the beginning of December, we had the Court of Session dismissing a petition for judicial review submitted by William Beggs (the notorious ‘Limbs in the Loch’ killer (see William Frederick Ian Beggs v The Scottish Ministers  CSOH 95).
Some weeks later, another petition has been disposed of by the Court of Session which raised many of the same legal principles. David Gilday, another inmate of Her Majesty’s penal establishments, has proved to be no luckier than Beggs.
Gilday was complaining about a breach of his Article 8 rights when correspondence (a greetings card) addressed to him was seized by the prison authorities on suspicion that it was impregnated with unlawful (psychoactive) drugs. Suspicions had been raised when a sniffer dog gave the package more than usual attention.
Article 8 of the European Convention is not an absolute right and it may be limited by State authorities (in this case the Scottish Prison Service) for:
“… the prevention of disorder or crime and for the protection of health or morals.”
Lord Pentland in the Outer House of the Court of Session noted:
“… that prison officers sometimes come into inadvertent contact with psychoactive substances in prison and the view had been taken that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to such substances. That stance seems to me to be responsible and proportionate. In my opinion, a wide margin of discretion should be extended to the SPS to identify what constitutes a risk in a prison setting and to determine how best to address that risk … As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”
Consequently, the petition submitted by Gilday should be dismissed as the prison authorities had acted quite legitimately in interfering with the prisoner’s rights under Article 8 of the European Convention.
A link to Lord Pentland’s Opinion (Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers  CSOH 103) can be found below:
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Copyright Seán J Crossan, 23 December 2019