SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 153

 

P1260/13

OPINION OF LORD MALCOLM

in the cause

WILLIAM FREDERICK IAN BEGGS (AP)

Petitioner

against

THE SCOTTISH MINISTERS

Respondents

Petitioner:  Leighton;  Drummond Miller LLP

Defender:  D Hamilton;  Scottish Government

2 November 2016

Introduction
[1]        In 2001 the petitioner was convicted after trial of the crime of murder.  He was sentenced to life imprisonment, with a punishment part of 20 years (this being the time which must be served before an application for parole can be made).  In this application for judicial review, to my mind at least, the main issue relates to the challenge concerning decisions taken by officials on behalf of the respondents over many years to refuse permission for the petitioner to purchase and use a personal laptop PC and printer, and in particular to one such decision in March 2014.  The petitioner has sought a laptop largely for the purpose of word processing facilities and the like in connection with various court actions, both criminal and civil in nature, which he has pursued, and continues to pursue.  In addition, reference has been made to educational purposes.  To put the matter in context it is necessary to recount some of what is a long and detailed story.  I do not claim that what follows is comprehensive, but I hope it provides a reasonable summary of the salient features of the history of and background to the current proceedings.  At the hearing there was a suggestion that a proof might be necessary.  No doubt evidence would cast further light on the matter, and allow each party to explain matters or contradict the other’s account, but I am satisfied that an inquiry is not necessary for resolution of the application. 

 

The Early Years

[2]        The question of a personal laptop was raised as early as 2002.  In October of that year it was addressed by the then Scottish Prisons Complaints Commissioner.  She stated that the petitioner “is a highly educated, intelligent man whose literacy is excellent”.  He had the right to prepare responses and instructions for his lawyers.  The commissioner continued “Given the assumed complexity of Mr Beggs’ cases, it does appear reasonable to permit him access to a word processing facility for the sole purpose of undertaking his legal work”.  The formal recommendation was that the petitioner should be allowed access to a word processor for the purpose of his legal casework, with secure facilities for the storage of his material on disks provided to him by the prison;  and further that he should have use of a printer such that his material was printed in his presence, always having regard to the privilege attaching to communications between a prisoner and his lawyers.  A further recommendation was that the Scottish Prison Service (“SPS”) commence a review of its instructions and policies in relation to prisoner access to computers, having regard to the increased use thereof in the wider community as a means of communication and data processing. 

[3]        Not long thereafter the issue was the subject of a judicial review application.  At the time the petitioner was in HMP Peterhead.  Pending a first hearing, a detailed undertaking was provided on behalf of the respondents to the effect that they would allow the petitioner to prepare material on a word processor and have access to a printer.  His documents could be saved to removable media.  The proceedings were settled in terms of a joint minute which provided that SPS would provide computer facilities to the petitioner for the purpose of preparing documents relating to his forthcoming appeal against conviction and sentence, and that on the basis of certain specified conditions. 

[4]        The productions indicate that, at least so far as the petitioner is concerned, this arrangement did not operate smoothly.  For a period the prison laptop was withdrawn because of its “potential for misuse”.  Later it was indicated that the laptop was issued on a first come first served basis.  It was not known when another prisoner listed before the petitioner would return the laptop.  The petitioner did not have preferential access to it.  Similar issues arose over the following months and years.  The petitioner complained that his access was being impeded in a way not envisaged in what he called “the compact”, which I understand to be a reference to the terms of the extrajudicial settlement of the legal proceedings.  In May 2006 he was told that the computer was being used by another prisoner who had retained it for more than two weeks.  By way of another example, in February 2008, ten days after requesting the laptop for use regarding his legal proceedings, the petitioner was informed that he was next on the list but could not be given a date when it would be provided.  Similar such examples throughout 2008 are vouched in the productions.  For example, in November of that year the petitioner complained that three weeks had passed since his written request for use of the laptop. 

 

The February 2009 Decision

[5]        In February 2009 the governor of Peterhead prison responded to a request for permission for the petitioner to have a personal laptop computer.  (Throughout the petitioner has been willing to purchase a personal laptop and related equipment.)  Reference was made to policy documents relating to prisoners’ access to computers/word processors, namely Governors & Managers Action Notices 84A of 1998 and 15A of 1999 (GMA 1998 and GMA 1999).  The former provided that in closed establishments a prisoner could not own a laptop.  Such equipment would only be provided by the prison and then only in education units.  A more relaxed regime for prisoner owned laptops would operate in open prisons.  GMA 1999 recognised that no allowance had been made for “exceptional cases” in respect of closed establishments, thus it stated that governors could forward details to Custody Directorate for approval of a prisoner who “has sufficiently compelling circumstances to justify access to a personal computer and (when) an assurance can be given that effective monitoring of that access can be employed”.  The governor’s response continued: 

“In relation to your case, whilst I acknowledge that you have sufficiently compelling circumstances to justify access to computing equipment, I believe that this need is currently met by your having access to the laptop computer provided by the prison.  This arrangement also provides SPS with the necessary assurance that effective monitoring of your access to that facility is in place.  A review of the existing policy for prisoners’ access to computers is currently underway within Prisons Directorate, however I am unable to provide you with a projected completion date for this work at this time”. 

 

[6]        In August 2009 the petitioner was transferred to HMP Edinburgh.  On 9 September 2009 the chairman of the internal complaints committee stated that the petitioner would be given access to the stand‑alone computer in Ingliston Hall and allowed to print material in Carnegie College on Friday afternoons.  On 3 January 2010 the petitioner lodged a complaint referring to his “pro-forma request” of 27 December 2009 for a laptop PC “in possession for legal and educational use”.  I understand this to be a reference to a personal as opposed to the prison computer.  The petitioner noted his disappointment that the request was refused “without any enquiry into the circumstances of the request” and that the reason for the refusal appeared simply to be that the item was not on the “articles allowed in prison” list.  The petitioner contended that the governor was obliged to give proper consideration to the merits of his request and not simply refuse it as a matter of policy.  In response, reference was made to the availability of a prison laptop.  The assertion that the governor required to give proper consideration to the merits of the request was regarded as unfounded. 

[7]        The petitioner continued to assert that the governor should address his request on its merits.  He was informed by the residential supervisor that a laptop fell into the category of a personal communication device capable of transmitting or receiving a communication of any kind, and this because of the possibility of connection to the internet, the telephone system, bluetooth or wi-fi.  As a result a laptop was a prohibited article in prison.  This was a national policy with which the governor required to comply.  The petitioner stated that access to personal computing equipment was covered by a distinct policy.  The notices of 1998 and 1999 required local managers to give due consideration to the circumstances of individual requests.  The governor replied that the issue raised was essentially the same as that dealt with by the governor of Peterhead in his response of February 2009, to which reference was made.  “The SPS position has not changed in the interim”.  It can be recalled that the Peterhead governor accepted that the petitioner had demonstrated compelling circumstances, but that his need was met by the availability of a prison computer.  Matters then appear to have been regulated in practical terms much as before.  For example, on 24 February 2011 a request for use of the legal laptop was acknowledged.  It was currently in use, and the petitioner had been placed on a waiting list.  The estimated date for issue was 3 March. 

[8]        By letter of 9 July 2010 the Scottish Public Services Ombudsman stated that SPS had informed him that prisoner access to computers was governed by the 1998 and 1999 notices.  The latter acknowledged allowance for “exceptional cases”.  SPS said that any requests from Mr Beggs were considered on their merits, and reference was again made to the Peterhead governor’s reasoning in his letter of 23 February 2009.  As to the effectiveness of the system for tracking the shared laptop at Peterhead, SPS had told the ombudsman that reviews were carried out from time to time, and the current system “allows for appropriate management while ensuring the quality of access for all prisoners”. 

 

Intervention by The Scottish Prisons Complaints Commission
[9]        In September 2010 the Scottish Prisons Complaints Commission upheld the petitioner’s complaint that his application to the Peterhead governor the previous year for a personal laptop was refused without any inquiry into its merits.  The Commission recommended that, in view of the ongoing legal proceedings and educational courses in which Mr Beggs was involved, the chief executive of the SPS should invite prison management to submit full details of Mr Beggs’ requirement for a laptop in use to SPS for approval or otherwise.  It was also recommended that the existing policy be updated as a matter of urgency.  It should include clearly stated criteria for eligibility and as to the purposes to which the laptop may be used.  It was suggested that “a more equitable approach” be taken towards Mr Beggs’ requests.  So far as prison owned laptops were concerned, access should be improved and expanded, including the provision of more than one laptop in establishments where demand was high. 

[10]      In response to all of this the Prisons Directorate indicated that the governor at Peterhead had confirmed that Mr Beggs enjoyed “adequate access” to the necessary computer facilities for legal and educational purposes.  An update was provided in relation to the review of the access to prison laptops protocol.  A deadline for completion could not be provided. 

 

HMP Glenochil
[11]      By June 2011 Mr Beggs had been transferred to HMP Glenochil.  He continued to complain of problems with and delays in access to a laptop.  For example, a request dated 15 June 2011 was not granted because the laptop was in the possession of another prisoner who kept it till 28 June, when it was withdrawn from circulation.  The petitioner was told that it had been removed pending a new procedure for access to a legal laptop. 

[12]      In July 2011 the petitioner again requested permission to purchase his own laptop for legal and educational use.  The request was refused.  A complaint about this was rejected on the basis that laptop PC’s were “prohibited items” in terms of a policy in force since 2008, in that they were considered to be personal communications devices.  The governor refused to see Mr Beggs in relation to this complaint.  SPS headquarters informed the petitioner that a laptop was only considered to be a personal communication device if wi-fi enabled.  The petitioner stressed that he was engaged in complex criminal and civil proceedings, and required access to word processing facilities and meaningful access to IT in order to pursue Open University studies.  He invited local management at HMP Glenochil to review the position. 

[13]      On 3 August 2011 the petitioner was told by the governor that the issue of replacement prison laptops was being progressed by SPS headquarters.  In early January 2012 new laptops were received and the petitioner was informed that a protocol for prisoner access would be issued the following week.  The internal complaints committee was aware that his request for a personal laptop had been considered by two separate committees, one in Peterhead and one in Glenochil.  On this basis it was concluded that this aspect of his complaint had been fully considered. 

[14]      SPS promulgated a protocol on access to prison owned laptops at Glenochil in May 2012 as a pilot version.  It covered only legal work.  It required completion of a written application form.  If granted the prisoner would be told in writing when the laptop would be made available.  Amongst other things the applicant required to demonstrate “real prejudice to his case” if he was unable to access a laptop.  He or she had to sign a compact as to the terms and conditions upon which the laptop would be granted, including 14 specific undertakings.  The productions demonstrate that, at least as the petitioner saw it, his requests for access to a prison laptop continued to be impeded during late 2012 and early 2013. 

[15]      On 5 February 2013 the petitioner complained that there had been no response to his further request of 1 February for a personal laptop PC (without internet connection) for use in connection with legal proceedings and educational interests and courses.  Amongst other things he said that, as a life sentence prisoner with a 20 year punishment part, he wanted to use his time constructively.  He expected a “considered response” to his requests.  The petitioner elaborated on this complaint in a form dated 9 April 2013.  He referred to the recommendations made by the Scottish Prison Complaints Commissioner in September 2010.  There was a lack of clarity in the criteria for allowing a laptop in possession, hence the need for a review of the policy.  By letter of 20 March 2013, he had been informed that no such review had taken place.  The response, dated 15 April 2013, was to refer the petitioner to the SPS updated protocol on prisoners’ access to laptops (approved on 26 March 2013).  It now covered the whole prison estate and was similar to the earlier Glenochil pilot version (mentioned above).  It set out guidance and eligibility criteria, and made provision for an application form.  The protocol did not cover educational purposes, which were dealt with in the educational department of the prison.  The response concluded:  “I believe I have considered your request on its merits, however I am not sanctioning the use of a laptop in possession for either legal or educational use.  Both activities can be undertaken as described above”.  In other words, as with the request in 2009, the petitioner was being referred to the arrangements for borrowing a prison laptop. 

 

The Petitioner’s Papers
[16]      In or about May 2013 the dispute moved on to questions concerning the petitioner’s access to his papers held remotely at HMP Edinburgh.  By then the petitioner had accumulated a large amount of documentary material, the bulk of which was required to be kept elsewhere than in his cell.  He had been given two options, namely to attend the prison reception on a Monday and Friday each week to access his legal documentation for a period not to exceed 30 minutes, or

“request access to attend reception and arrangements will be made at a time suitable to all, at which point you will be allowed to select legal documentation to be kept in the aforesaid metal filing cabinet in Ingliston Hall.  You will be allowed access to this cabinet on a daily basis for a period of 30 minutes”. 

 

The petitioner was told that he could remove materials from the cabinet to be kept in his cell overnight, so long as they did not exceed the capacity of one plastic storage box.  On 24 June 2013 the petitioner was refused a cabinet in his cell.  Regarding access to a laptop, he was again directed to the access to laptops for legal purposes protocol and was encouraged to apply under it.  So far as educational purposes were concerned, the petitioner was referred to the IT facilities in the education department at the prison. 

 

The March 2014 Decision
[17]      In March 2014 Mr Beggs submitted another request for him to be allowed to purchase a laptop PC in possession and to have access to a scanner.  This was refused on the basis that there was no such item allowed in terms of the request form used.  Mention was then made by the petitioner of what was said to be continuing confusion regarding, firstly, laptops owned by and in the possession of prisoners, and, secondly, loan laptops.  The purpose of the request for a personal computer was to assist with the management of the petitioner’s legal documentation;  to help in the preparation of documents connected with ongoing litigation and prospective litigation;  and to follow academic interests in language study, which it was said SPS had refused to facilitate. 

[18]      On 21 March 2014 the governor of HMP Edinburgh responded stating that requests of this nature were only considered in “exceptional circumstances”.  The reasons given by the petitioner did not meet this criteria.  It was noted that there were other individuals in the prison estate who were able to manage their cases without access to a laptop PC.  Educational purposes were not an acceptable reason.  In addition Mr Beggs was told to stop adding items to the pro‑forma request sheet.  It is this decision which is the subject of specific challenge in these proceedings. 

[19]      Moving forward to May 2015, there is a record that two requests to access the petitioner’s documents had been refused.  He was informed that he should have made the requests in the mornings;  in the afternoons such requests could only be granted if sufficient staff were available.  The following month the petitioner expressed concern that his requests to visit reception to access his documentation were being “systematically frustrated”.  In July 2015 there is a record of ongoing difficulties in the petitioner obtaining access to the prison laptop.   

[20]      In June 2015, given that there had been a recent change in senior management, the petitioner repeated the request for an “in possession laptop”.  He claimed that the “exceptionality” test was arbitrary.  Any reference to the Management Notice 34A of 2008 was irrelevant as he was not proposing to use the laptop as a personal communications device.  He contended that, in effect, there seemed to be more or less a blanket ban.  Again the petitioner stressed that he wanted a decision upon the merits of his application.  He detailed his reasons for wanting his own laptop PC in possession.  They included his need to give his solicitors detailed instructions on a regular basis in relation to a number of civil actions;  to allow ready access to material which he had previously created in terms of the settlement of the original action;  and his desire to pursue educational interests.  He expressed the view that there were no IT facilities available to him within the prison whereby he might pursue his legitimate interest in seeking to have his conviction overturned. 

[21]      On 29 July 2015 he was informed that this latest request was refused.  The criteria were not met.  His concerns could be handwritten.  A laptop was not intended to be used as a word processor.  Furthermore, his requests had not related to “appealing a court decision”.  The internal complaints committee rejected the subsequent complaint, mentioning that the request did not relate to legal matters and that his handwriting was legible.  On 13 August 2015 the petitioner was told “a prisoner may only apply to the SPS for access to a laptop in order to prepare legal material or view legal material sent on a disk”. 

[22]      On 14 August 2015 the petitioner lodged a complaint with a view to offering the governor the opportunity to reverse this decision.  The internal complaints committee rejected this complaint.  In October 2015 the petitioner requested the reinstatement of IT facilities in the learning centre.  At the time he was registered to work for a City & Guilds Barbering and Hairdressing qualification and he needed access to educational IT facilities.  Failing this, he should be allowed to purchase his own laptop PC for educational purposes.  Policies and protocols should not be used as an alternative to a consideration of the merits of his application. 

 

Submissions in the Note of Argument for the Petitioner
[23]      The relevant policy documents indicate that there is no reason in principle for refusing a prisoner permission to purchase his own laptop and related equipment.  Indeed there is a precedent, in that a previous prisoner had been given permission.  To grant the petitioner’s request would be a reasonable and proportionate response to his concerns regarding his legal papers.  Refusal amounted to a disproportionate interference with his Article 8 ECHR rights.  The prison laptop scheme is clearly inadequate.  The exceptional circumstances test is too high a hurdle to permit a proper balance to be struck.  There are insufficient safeguards against arbitrary decision making.  The policy lacks precision and certainty.  A prisoner cannot know what he or she requires to establish.  In Convention terms, the policy lacks the necessary quality of law. 

[24]      No reasonable decision‑maker could refuse the petitioner’s request.  Further there had been a failure to have regard to relevant considerations.  The problems encountered with regard to the bulky documentation should have been taken into account, along with his desire to use a laptop for educational purposes.  Officials on behalf of the respondents had unreasonably fettered their discretion.  They purported to apply the policies contained in GMA 1998 and GMA 1999, but in reality did not give any genuine consideration to a positive response.  They did not have regard to the particular circumstances pertaining to the petitioner.  The decisions were unsupported by sufficient reasons.  The petitioner was unable to ascertain why his requests were refused.  There was repeated confusion with the prison owned laptop scheme. 

[25]      In short it was submitted that the petitioner’s requests should have been dealt with on their merits.  Any concerns expressed regarding security matters are equally applicable to borrowed laptops.  In any event there was no proper basis to claim that the petitioner would circumvent or disobey any restrictions imposed for security reasons.  He is an unusual prisoner who has a large amount of legal papers and many court actions to process and progress.  Granting the request would resolve the remote documentation problem and the difficulties experienced in accessing a prison laptop. 

 

Submissions in the Note of Argument for the Respondents
[26]      It was noted that the petition focuses on reduction of the decision dated 21 March 2014.  The reasons put forward in support of that application were not valid in terms of the laptop protocol.  The court cannot sanction a circumvention of SPS policy.  So far as education is concerned, it can be pursued by using the facilities in the prison education department. 

[27]      It was submitted that the petitioner first applied to borrow a laptop under the protocol in July 2015.  The management notice of 1999 gave flexibility to governors, always subject to approval by Custody Directorate.  The letter of refusal was made specifically within the context of the SPS laptop protocol.  Discretion in favour of granting a request is only to be exercised in an “exceptional” case.  The governor’s letter made it clear that the petitioner does not fall into such a category.  Permission can only be granted in respect of a “compelling” case when effective monitoring can be assured.  This two-fold test is proportionate to a legitimate aim of ensuring that prisoner access to laptops is carefully controlled and monitored. 

[28]      The governor’s assessment in terms of the 1999 policy was reasonable and justified.  The governor was in no position to give any assurance that effective monitoring is possible when a laptop is owned by the prisoner.  There is a protocol for access to a laptop, which, as at March 2014, the petitioner had failed to use.  The application was in direct contradiction of that policy. 

[29]      Refusal did not breach a Convention right under Article 8.  All of the now claimed advantages of storing documents in electronic format, obviating fire or security concerns, avoiding the arrangements by way of visits to reception, etc, are met by the laptop protocol scheme.  Counsel informed the court that there are four laptops available in HMP Edinburgh.  The cost of each adapted laptop is approximately £1,000.  The laptop protocol is not designed to allow the creation of documents or afford access to scanning.  It allows prisoners to access documents on a laptop in specific circumstances.  No scanner or printer is justified, and in any event it creates an additional and unnecessary risk.  The petitioner can write letters and other documents in manuscript.  The restrictions contained in the protocol are justified, necessary and proportionate. 

[30]      The governor’s decision does not impede access to justice, so there is no breach of Article 6.  The cases indicate that mere inconvenience to a prisoner is not enough.  He has physical access to his papers.  He can still write, something in respect of which he is “prolific”, and likewise in his ability to raise and defend civil and criminal proceedings.  He can access a laptop through the protocol, albeit he did not engage with it until July 2015.  He enjoys access to legal aid, counsel and solicitors. 

 

Analysis
[31]      The relevant policy documents are the GMAs of 1998 and 1999.  They relate to laptops in the sole possession of the prisoner, as opposed to borrowed prison equipment.  It is contemplated that a prisoner in a closed establishment can own and use a laptop PC if the circumstances justify it and security issues can be addressed.  In other words, there is no overall ban.  The tenor of the 1999 GMA is that in a closed establishment there is an onus on the prisoner to persuade the governor that the normal rule should not be followed, hence the reference to “exceptional cases” and “compelling circumstances”. 

[32]      A prisoner making such a request is entitled to a consideration of his particular circumstances and an assessment by the governor of the individual merits of his application.  Any refusal should demonstrate that this has happened, and sufficient reasons provided to enable the prisoner to understand why his request failed.  The court was told that, so far, only two prisoners had made such a request, one being the petitioner, and the other being Abdelbaset Ali Mohmed al-Megrahi who was allowed to possess and use a personal laptop.  This alone demonstrates that it is possible for security concerns to be satisfactorily addressed.  The frequent use over lengthy periods by prisoners of prison owned laptops also supports this, and of course the policy in itself envisages as much. 

[33]      The 1998/1999 policies remain extant.  They are free‑standing documents.  Prison owned laptops are subject to a separate protocol which has recently been recast in very restrictive terms, apparently specifically to address issues under Article 6.  The latter scheme has not superseded the 1998/1999 documents nor rendered them redundant.  It follows that, in itself, the existence of the prison laptop protocol which, as I have noted, is in very restrictive terms, and is limited to legal matters, is not a reason to refuse a request for a laptop – though this has been the justification provided to the petitioner on previous occasions, see for example the decisions in February 2009 and April 2013.  Similar comments can be made in relation to refusals based simply upon the limited scope of the prison laptop scheme, for example, in order to rule out any request based upon educational purposes. 

[34]      Given the purpose of the 1999 GMA, namely to allow for exceptions to the overall prohibition in closed establishments, it follows that it cannot be sufficient simply to state that a prisoner laptop is not “an article allowed in prison”, or some such epithet, although again that was sometimes used as a reason for refusal.  It is conceded that concerns regarding personal communication devices under GMA 2008 are not a good ground of refusal, although again this has been used in the past, for example in mid‑2011. 

[35]      The specific refusal under attack in these proceedings is that of March 2014.  The immediate reason was that a laptop was not allowed in terms of the particular request form used, which again I understand to be a reference to the articles allowed in prison list, which the court was told includes equipment such as Xboxes, PlayStations, and the like.  The reasons put forward in support of the request have been mentioned earlier.  In summary they referred to legal and educational purposes.  The governor told the petitioner that they did not amount to “exceptional circumstances”.  Other prisoners managed their legal cases without access to a laptop PC, and educational purposes were not an acceptable reason.  The petitioner was instructed to stop adding items to the pro‑forma request sheet. 

[36]      If one pauses to reflect on the overall background at this time, it is not difficult to understand why the petitioner would be less than satisfied by this response.  The relevant circumstances include the following.  Early in his prison career, in the context of access to a laptop, the petitioner received a positive response from the then Scottish Prisons Complaints Commissioner.  Proceedings in about 2003/4 were settled on the agreed basis that he would have access to a word processor and a printer.  There was then a lengthy and ongoing history of difficulties with the petitioner gaining access to, or at least timeous access to a prison laptop.  In February 2009 the governor at Peterhead stated that the petitioner had demonstrated “sufficiently compelling circumstances to justify access to computing equipment” – a clear reference to the test for a laptop in possession under GMA 1999.  In 2010 the Scottish Prisons Complaints Commission urged SPS headquarters to come to a decision on Mr Begg’s request for a laptop in use and adopt “a more equitable approach”.  It was recommended that the relevant policy should be revised to provide clearly stated criteria, which I understand to mean something more specific than “exceptional” or “compelling” circumstances. 

[37]      After his transfer to Glenochil in 2011, problems persisted in respect of access to the prison equipment, and requests for a laptop in use were refused on the erroneous basis that they were personal communication devices.  The prison laptop scheme was redrawn in restrictive terms – see above.  The petitioner was urging that, as a life prisoner with a lengthy punishment part, he wanted to use his time constructively and he continued to seek a “considered response” to his requests, especially given the lack of clarity in the relevant policy.  The recommended review of that policy never took place. 

[38]      Given the large number of cases in which the petitioner had been and was involved, he had accumulated a large number of papers which began to cause problems in themselves, for example in terms of storage, fire risk and access.  In large measure a laptop in use would resolve the time‑consuming issues which arose therefrom.  Throughout the petitioner offered to pay for the equipment, thus there would be no drain on SPS finances.  Permission would resolve his desire to have ready access to educational courses and programmes.  He is only the second prisoner to make such a request, the other having been granted permission.  To all of this can be added the comment that the petitioner would appear to be recognised as unusual in respect of the number of legal proceedings pursued and the prolixity of his letter writing activities. 

[39]      If the view were to be that the above does not amount to a sufficiently compelling case in terms of the relevant policy, I would have sympathy with Mr Begg’s expectation of a more considered, detailed, and reasoned response than anything provided so far.  In my opinion it is not sufficient simply to state that his case is neither exceptional nor compelling, and that he can create documents in manuscript and, for the rest, use the prison laptop protocol. 

[40]      During the oral hearing, counsel for the respondents offered certain potential reasons for refusal of the petitioner’s requests, largely based upon security concerns and the possibility of abuse.  So far as I can discern, none of these have been relied upon in respect of any of the above refusals, other than perhaps the somewhat oblique comment in February 2009 that security concerns were addressed if the prison laptop scheme was used.  As I mentioned earlier, the relevant policy contemplates that there can be cases where security issues are satisfactorily addressed in respect of a personal laptop in use, and previously one prisoner passed that test.  In any event, at a minimum, the petitioner should be entitled to an opportunity to respond to and seek to alleviate any such concerns specific to him.  The court was told that four prison laptops are now available in the petitioner’s prison, however, as I have already observed, the existence of the prison protocol cannot of itself amount to an answer to a request under GMA 1999, especially given the very restrictive terms of that scheme. 

[41]      Counsel for the respondents accepted that Article 8 was engaged, however I do not consider it necessary to my decision to discuss the submissions thereunder.  I would only say that I have sympathy with the proposition that the current policy is lacking the necessary clarity and certainty to avoid concerns as to arbitrary and disproportionate decision‑making.  As to Article 6, counsel for the petitioner did not press this, which is understandable in the absence of any detailed example of actual prejudice in terms thereof. 

[42]      While I have taken the view that it is necessary to consider matters in the wider context, including all other refusals, the specific challenge in this petition is to the governor’s decision of March 2014.  For the reasons given above, I am satisfied that relevant circumstances were not taken into account, and that inadequate reasons were provided for the refusal of the petitioner’s request.  I shall therefore quash that decision.  To avoid potential complications, I shall also quash the refusal in 2015, which is subject to similar criticisms.  The practical result is that the requests of 2014 and 2015 are outstanding and should be considered anew.  In that regard it is not for me to determine the appropriate procedure.  However, it may be helpful if I note that amongst the voluminous paperwork accompanying the petition I have found no record of any governor granting the petitioner a meeting to discuss his requests and the reasons for them.  The new decision‑maker may wish to consider whether there would be merit in such a meeting, when, whatever else, security concerns could be addressed face to face. 

[43]      In addition to an order reducing the decision of 21 March 2014, the petitioner seeks three further orders.  I am not prepared to grant any of them.  The first concerns reduction of a disciplinary finding dated 10 December 2012.  This arose from a refusal by the petitioner to obey an order to put certain papers in a filing cabinet.  The main submission for the respondents concentrated on the low level, even trivial nature of the matter, which, in the overall scheme of things, will have no impact upon the management of the petitioner in the prison, and certainly no influence upon any ultimate deliberations by the parole board.  As a result the challenge, which in any event was raised more than three years after the event, serves no practical purpose and the application should be refused on that basis.  I am satisfied that this submission is correct and should be upheld.  In these circumstances it is not necessary for me to dwell on the merits of the challenge nor the respondent’s submission on time bar.  Suffice to say that in my view the circumstances did not require the adjudicating body to grant the petitioner’s request for legal representation, nor am I satisfied that, in a summary matter of this nature, the procedure adopted was in any respect unlawful or unfair. 

[44]      The other two orders concern firstly, declarator that the scheme adopted by the respondents for the petitioner to access his papers held remotely from his cell are in breach of Articles 6 and 8 of the Convention, and secondly, that the operation of the scheme is similarly in breach of the said Articles.  The first matter was not pressed by counsel for the petitioner, he indicating that his main complaint regarded the operation of the scheme.  Reference was made to the various problems and incidents which had arisen in connection with it, many of which have been mentioned earlier.  The emphasis was on Article 8, with regard to respect for the petitioner’s correspondence;  counsel recognising that nothing in the petition could reasonably be regarded as sufficient to amount to a breach of Article 6. 

[45]      It is apparent that there are a number of disputes as to fact regarding the alleged problems with the operation of the arrangements for the petitioner to access his papers.  I was invited to take the view that sufficient had been put forward to justify an inquiry, and this on the view that, while it may be reasonable to have a scheme for limited access, it had to be operated properly and in accordance with law.  For the respondents it was submitted that a specially developed daily scheme had been created for the petitioner.  When access was not possible, this was for a good reason.  In recent times a daily log of the petitioner’s position has been compiled, and overwhelmingly he has refused offers or indicated that access was not required.  The vast majority of his complaints have been satisfactorily answered, and in any event, from time to time he was bound to be dissatisfied with the consequences of a dynamic prison environment and the many calls on prison officers’ time. 

[46]      I am not prepared to order an inquiry on this matter.  It seems to me that the issue of the petitioner’s documents and the inherent problems which can be encountered when he seeks immediate access to them, are more properly seen as part of the relevant circumstances surrounding the question of his requests for a laptop in use, and in any event are aspects of practical prison management of a type which should not be subject to judicial interference.  Furthermore, even taking his averments at the highest, on the information before me I foresee no circumstances in which the operation of the scheme would be held to have amounted to a breach of the rights relied upon. 

 

Decision

[47]      I shall uphold the petitioner’s eighth and tenth pleas in law and grant decree of reduction of the decision dated 21 March 2014 refusing the petitioner permission to purchase a laptop for his possession and use in prison, and also the subsequent decision made on 29 July 2015.  With regard to the other orders sought, they are refused for the reasons given above.