Lord Matthews in the Outer House held that the system was proportionate.

His Lordship considered that it was necessary for prison authorities be able to monitor and record telephone calls for the purposes of the prevention of disorder and crime but in particular for the discipline and control of persons required to be detained therein in terms of section 39(1) of the Prisons (Scotland) Act 1989.    It was noted there were around two million calls from Scottish Prisons each year, and although many of these calls would be to the same recipient, Lord Matthews considered it legitimate to infer that there will be tens if not hundreds of thousands of different recipients of calls each year.  There would, therefore, be a significant number recipients whose article 8 rights would be infringed were they not made aware of the fact of the surveillance.   His Lordship also considered that the message was necessary due to the evidence that those suffering from domestic violence found the message gave them a useful indication of whom a call was from and allowed them time before the call to decide whether to hang up or not without invoking the anger of the prisoner.  Furthermore, the Scottish Prison Service had a legitimate aim in operating a blanket policy in order to prevent the  exploitation and bullying of prisoners who would be subject to a different set of rules regarding phone usage if there  were such rules.

The court held that if there is interference with the prisoner’s Article 8 rights, this is marginal at best.  It was held that arrangements can be made to make calls at specific times, and the court stated that the prisoner could  correspond in writing if he did not wish people to know he was in prison.

The full report can be read here.

The ECHR ruled unanimously that the UK regime governing secret surveillance of individuals did not interfere with the Applicant’s private life as guaranteed by Art 8 of the ECHR.  It was determined that the interference with private life which the surveillance measures entail, was legitimate having as its aim the protection of national security and economic well being of the country.  It also sought to prevent crime.  The Regulation of Investigatory Powers Act 2000 was available on the internet and was therefore accessible.  The court further noted that in contrast with other countries, warrants for internal communications had to relate to one person only or to one set of premises and were therefore restrictive and did not provide unlimited discretion.  The data was to be destroyed as soon as no longer necessary and detailed records of warrants were to be kept.  Additionally the regime was supervised by an independent commissioner who prepared an annual report which was a public document and laid before Parliament.  The court further noted the existence and extensive jurisdiction of the Investigatory Powers Tribunal to examine complaints of unlawful interception of communications.  Any person could apply to the Tribunal which has extensive powers to access closed material and order production from the commissioner of any documents it considers relevant.  The Tribunal has powers to quash interception orders , require destruction of material and can order compensation.  Its rulings are published thus increasing scrutiny of the surveillance provisions.

See Times Law Report, 3 June 2010

‘Judges have ruled the system that places sex offenders in Scotland on a register for life with no way of being removed is in breach of their human rights.

In a landmark judgment involving a convicted sex offender who was placed on the sex offenders register indefinitely at the age of 15, three judges said the scheme, as it stands, is incompatible with the European Convention on Human Rights (ECHR).

It means hundreds of people in Scotland could appeal their cases and challenge their inclusion on the register, while Scottish ministers will now have to change the law to bring the system into line with European legislation.

In future, the system will have to allow offenders to be able to apply for their removal from the register if they can prove they no longer pose a risk.

The decision follows the judgment last month of the Supreme Court, the highest in the land, to unanimously dismiss a Home Office challenge in relation to two English offenders who were on the register for life.

Lawyers for 52-year-old Angus Thompson and a teenager, who raped a child when he was aged just 11, ­successfully argued that the lack of opportunity to demonstrate they had reformed was a breach of their human rights.

The new UK Government may now have to adapt legislation to make ­provision for those who want their inclusion on the ­register re-examined.

The sex offenders register contains the details of anyone convicted, cautioned or released from prison for a sexual offence against children or adults since September 1997, when it was set up.

There are 3913 registered sex ­offenders in Scotland, of which 1631 are subject to the notification requirements for an indefinite period.

In the Scottish case, Lord Hamilton, the lord president, Lord Reed and Lady Smith upheld the appeal of Mr A – who pled guilty in 1993 at the High Court in Airdrie to two charges of assault with intent to rape, one of which included an element of robbery. He was 14 at the time of the offences.

While the case is to be continued later next month – to decide on how it affects ministers and to what extent it will be applied retrospectively – ­lawyers said it was agreed yesterday that Scottish ministers will have to change the law.

Tony Kelly, his solicitor, said: “This outcome was inevitable given the recent declaration by the United Kingdom Supreme Court that the Sex Offender Notification Scheme, under the Sexual Offences Act 2003, was incompatible with convention rights – in that it failed to provide a mechanism for review to enable offenders to apply for their removal from the register.

“The court has continued the matter to discuss and decide upon the question of the remedy to be afforded to: the particular petitioner in this case; and Scottish ministers.

“This has important ramifications in relation to sex offender notification for the past and in the future.”

Kelly added: “Scottish ministers’ recognition that legislation will require to be forthcoming (and that in early course) is, perhaps, an indicator of the significance of this ruling for the Sex Offender Registration Scheme in Scotland.

Offenders are placed on the register for life if they are sentenced to 30 months or more in jail. Any convicted offender on the register has to notify the police of their personal details, any change of address and when they travel abroad.

A Scottish Government spokesman said: “We will consider the impact of any judgment on the notification regime as it relates to offenders subject to indefinite notification. The objective is to have in Scotland a notification system that will be compatible with Article 8 of the European Convention on Human Rights.

“The Scottish Government’s priority is protecting the public. Scotland has one of the most robust systems of managing sex offenders in the world. The notification requirements form an important part of this system. They provide an invaluable tool to the authorities in allowing the police to keep track of the whereabouts of individual sex offenders; and managing the risk of known sex offenders.” ‘

The full article is available here

Contributing editor Zoe Picton-Howell of the University of Edinburgh will be giving a talk on Human Rights & Child Disability.

Where: Lorimer Room, Old College, University of Edinburgh, South Bridge

When: 6 – 7.30 pm, Monday 24 May 2010

1.5 hours CPD

This event is free to attend but places are limited.  Please contact us to reserve your place.

“This is our fourth report of the Parliament dealing with adverse judgments by the European Court of Human Rights and declarations of incompatibility issued by the domestic courts under the Human Rights Act. As way of background we note that the European Court is in crisis, struggling to deal with 120,000 cases and with new applications having increased seven-fold over the last decade. These problems stem in large part from failures of national implementation of Court judgments: in 2008, 70% of the Court’s judgments concerned cases which dealt with issues which had already been determined by the Court in earlier decisions.

Better mechanisms for implementing Court judgments must involve Parliament, particularly given the central role played by Parliament under the Human Rights Act. Although the UK’s record on implementing Court judgments is generally good, it is undermined by lengthy delays in a small number of cases where the political will to make the necessary changes is lacking. This damages the UK’s ability to take a lead on improving the current backlog at the Court.

We make a number of recommendations to the UK’s system for monitoring and responding to Court judgments, focused in particular on guidance to Government departments on our work in this area which we have drawn up and published for the first time. We recommend that the Government should seek to prevent future violations of the Convention where they are predictable, rather than the current approach of “minimal compliance” with specific judgments. As part of this new approach, we call on the Government to give systematic consideration to whether Court judgments against other countries have implications for UK law, policy or practice and to keep Parliament informed of any such implications.

Our conclusions in relation to some of the main issues we considered are summarised below.

Retention of DNA profiles and samples (S & Marper)

We reported at length on the Government’s response to this judgment in our recent report on the Crime and Security Bill. In short, we consider the response to be inadequate both in terms of the approach to implementation and the substance of the proposals. “Pushing the envelope” of the Court judgment, to maintain as much of the previous policy on DNA retention as possible, is likely to risk further violations of the Convention.

Summary possession of people’s homes (McCann)

This case concerns procedural safeguards in summary possession proceedings and is complicated by the fact that the European Court and the House of Lords reached different views on the issue. If, as is likely, the Court comes to the same conclusion in the forthcoming case of Kay as it did in McCann then legislative change will be necessary. We question whether it would not have been more cost effective to reform the summary possession process immediately after the McCann judgment rather than to let further litigation on this point run its course.

4 Enhancing Parliament’s Role in relation to Human Rights Judgments

Interception of communications (Liberty)

The court found that the interception of the applicants’ communications under the Interception of Communicated Act 1985 breached Article 8 of the Convention. The Act was subsequently replaced by the Regulation of Investigatory Powers Act 2000. We note similarities between features of the 1985 and 2000 Acts and that the human rights compliance of the 2000 Act will soon be tested in the case of Kennedy. We urge the Government to give serious consideration to ways in which it could amend the system for supervising the interception of communications to provide greater safeguards for individual rights.

Prisoners’ voting rights (Hirst) We continue to draw attention to the unacceptable delay in resolving this case.

Security of tenure for Gypsies and Travellers (Connors) We draw attention to the delay in bringing into force section 318 of the Housing and

Regeneration Act 2008, which would remedy this incompatibility.

Interim measures, Rule 39 (Al-Saadoon & Mufdhi)

This case concerns the decision of the Government to return two Iraqi applicants, detained by UK Armed Forces to the custody of the Iraqi authorities, despite the likelihood that they might face a risk of the imposition of the death penalty. Despite a request of the European Court that the individuals not be returned, under Rule 39 of the Court’s rules of procedure, pending a decision in their case, the UK surrendered the applicants to the Iraqi authorities. We call on the Government to provide us with certain information in any case where it considers refusing to meet a Rule 39 request for interim measures. The European Court of Human Rights has recently reached a decision on the merits of this case, finding the UK in violation of the right to be free from inhuman and degrading treatment (Article 3 ECHR), the right to an effective remedy (Article 13 ECHR) and the right of individual petition (Article 34 ECHR). We call on the Government to provide a response to the Court’s finding and recommend that our successor Committee keep this case under close scrutiny.

Suitability of care workers to work with vulnerable adults (Wright)

This declaration of incompatibility concerned the Care Standards Act 2000 which has now been replaced by the Safeguarding Vulnerable Groups Act 2006. We continue to express concern that aspects of the 2006 Act, dealing with the procedure by which care workers employed to look after vulnerable adults are placed on a list of people considered unsuitable for such work, may be incompatible with the Human Rights Act. We draw attention to concerns raised by the Chair of the Administrative Justice and Tribunals Council about the scope of the right of appeal provided in the 2006 Act and its compatibility with the right to a fair hearing and the right to respect for private life. We publish our correspondence with the Chair and call on the Government to publish a full response.

Religious discrimination in sham marriages regime (Baiai) We draw attention to continuing delay in resolving this incompatibility.”

The full report is available here.