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Prisoner privacy proportionality

13 August 18

Human rights briefing: legitimate aim and proportionality remain key in assessing interference with the article 8 right to privacy, a judge has held in the latest judicial review sought by a prisoner

by Ross Cameron

In Beggs, Petitioner [2018] CSOH 72 (10 July 2018), Lord Clark refused a prisoner’s petition for judicial review seeking reduction of the Scottish Prison Service’s decision to refuse him permission to purchase a laptop for his own possession and use in prison. The petitioner, serving a life sentence for murder in HMP Edinburgh, sought reduction of the deputy governor’s refusal on a number of grounds, including that the decision infringed his article 8 ECHR right to respect for his private life.  

Background

Beggs, who had been in prison since 1999, had requested access to a laptop of his own on a number of occasions. The requests were made on the basis that the use of a laptop was necessary for his (i) correspondence in connection with legal matters; (ii) management of documents in connection with those matters; and (iii) continued pursuit of educational interests. 

Beggs had raised the respondents’ refusal in a previous petition. Following Lord Malcolm’s decision in Beggs, Petitioner [2016] CSOH 153 to grant reduction of decisions to refuse access, a meeting took place at the prison on 31 January 2017, to afford Beggs an opportunity to explain why he required access to a laptop and why the prison laptop loan scheme was not an effective alternative. The deputy governor refused the petitioner’s request on 12 May 2017. 

No excessive interference

The court did not accept that the petitioner had made out that article 8 was engaged on the grounds founded on by him. In respect of the petitioner’s argument that the decision impeded his ability to manage his correspondence, Lord Clark was shown no authority for the proposition that when an individual had certain other means of corresponding open to him (such as a right to apply under the prison laptop loan scheme), a lack of access to a personal laptop engaged article 8. Further, there was no material put before the court that demonstrated that the other means of corresponding were so restricted in their availability as to impede or prejudice the petitioner’s ability to communicate. 

The court also held that the factual basis for the proposition that the lack of access to a personally owned laptop impeded the petitioner’s ability to engage in educational activity in the prison was not established. The court recognised that there was a general convenience in using a laptop which might enhance the ability to understand and study material. However, Lord Clark was not shown any basis for concluding that the lack of access to a particular form of enhancement of access to a laptop of itself engaged article 8. The court also held that, even if article 8 was engaged in the circumstances founded on, there was no doubt that the need to maintain good order and security in prisons amounted to a legitimate aim. 

As to proportionality, any interference had to be viewed in the context of all the other factors, including the existence of the prison laptop loan scheme and the fact that the petitioner had been able to engage in a number of litigations previously. No specific incident of prejudice had been identified by the petitioner by not having his own laptop, and the means by which effective monitoring and security concerns in relation to a personally owned laptop might be addressed were not identified or put forward. References to the latter in the decision letter reflected the nature and seriousness of the concerns. Accordingly, the court held that even if article 8 was engaged, any interference in the petitioner’s article 8 rights pursued a legitimate aim and was proportionate.  

Comment

Under article 8 everyone has the right to respect for their private life and correspondence. However, this is not an absolute right, but rather a qualified one subject to limitations set out in article 8(2), including whether any interference is in pursuance of a legitimate aim and proportionate. Although highly fact specific, the current case demonstrates that when other effective means of communication are available, the inconvenience to a prisoner in not having access to their own personal laptop does not in itself engage article 8, especially when the need to maintain good order and security in prison amounts to a legitimate aim. 

Ross Cameron, solicitor, Anderson Strathern LLP

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