In a case which oddly enough was used by the Law Society to quietly threaten the process of reform to the legal profession brought in by the former Labour controlled Scottish Executive, the Lord Hamilton of the Appeal court has decided Lord Glennie may have got it wrong when failing to take into account the rights of the general public when prisoners call them from jail.
Oddly enough too, senior officials at the Law Society are now not pushing forward the case in question, brought by a a serial offender serving 21 years for two armed robberies, as being a 'milestone' for ECHR now .. rather 'no comment' is being offered to enquiries made on how this case would have affected policy if the appeal had been dismissed ...
How much legal aid has been spent on this one again ? Figures please ....
The Scotsman reports :
JOHN ROBERTSON LAW CORRESPONDENT
AN APPEAL court stood up for the human rights of law-abiding Scots yesterday after criticising a judge who made the rights of a criminal paramount.
The court decided Lord Glennie failed to take into account the rights of the general public when he banned prisons from putting warning messages on phone calls made by inmates.
The case was brought by a serial offender serving 21 years for two armed robberies and was sent back to Lord Glennie for a rehearing.
Stewart Potter, 43, of Yoker, Glasgow, said each time he made a call from Glenochil Prison it was preceded by the message: "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."
Lawyers for Potter said 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 told his family he was in prison. If he called a friend, someone else who was unaware the friend knew someone in prison could answer.
The lawyers claimed the awkwardness and embarrassment caused by such occurrences was likely to deter communication with family and friends.
Politicians described Lord Glennie's initial ruling as "outrageous" and said it made Scotland "a laughing stock".
Scottish ministers, who are responsible for the Scottish Prison Service, accepted the warning - applied to outgoing calls at all jails - interfered with the European Convention's Article 8 right to "respect for private and family life, home and correspondence" - but said such interference was allowed as it was "in accordance with the law" and necessary.
Earlier this year, Lord Glennie ruled that the warning breached Article 8 and was unlawful.
He believed there was no authority in the Prisons (Scotland) Act 1989 to apply the warning which was not "in accordance with the law". He decided he did not have to consider whether it could be deemed necessary.
Lord Glennie said it had been laid down by previous judgments that a prisoner retained his civil rights unless they were removed by legislation. He said rules on calls from prison had safeguards to protect people from unwanted calls without the need for the blanket policy of pre-recorded warning, adding that the warning could be used on a case-by-case basis if necessary.
At the appeal - before the country's senior judge, Lord Hamilton, the Lord President, sitting with Lord Nimmo Smith and Sir David Edward, QC - Scottish ministers argued the thrust of the policy was to protect any third party from an unwelcome communication from a prisoner.
Giving the judgment, Lord Hamilton said: "It is, in failing adequately to take into account the potential infringement of the Convention rights of recipients of calls from prisoners, that Lord Glennie has, in our view, fallen into error. Each of these parties also has, under Article 8, the right to respect for his private and family life, home and correspondence. The legitimate interests of such recipients must be taken into account in determining the lawfulness of the measure impugned.
"In the present case, it cannot at this stage be affirmed that the inclusion of the statement complained of is not in accordance with domestic law. We are satisfied Lord Glennie's disposal of the case in [Potter's] favour was, at this stage, premature."
AN INDEPENDENT THINKER
LORD (Angus) Glennie, 56, a Cambridge graduate, has shown a strong independence of mind since being elevated to the Bench in 2005.
He gave early indications of being his own man when faced with one of his first criminal cases. A man accused of serious assault had jumped bail and failed to turn up for trial. It took police more than three years to trace him. Lord Glennie agreed with defence lawyers the man's right to have the case heard within a reasonable time had been violated by the delay, and ended the prosecution.
Lord Glennie also rewrote the law on exactly when an eviction had been completed. A number of sheriffs had come to the view that changing the lock marked the legal conclusion of an eviction, but Lord Glennie said it was when the tenant left, either voluntarily or by force.