O’Neill and Lauchlan v Scottish Ministers  CSOH 93, 28th October 2015 – read judgment
The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship.
Charles O’Neill and William Lauchlan, described by the judge as “predatory paedophiles”, were serving life sentences in HMP Glenochil and HMP Edinburgh respectively. The pair had murdered the mother of a boy who they were sexually abusing after she threatened to report them to the authorities. Her body was dumped in the Firth of Clyde. Both were also serving concurrent sentences for a number of sexual offences.
Since 2010, when they were sentenced to life imprisonment, O’Neill and Lauchlan had made various requests to visit each other. Until very recently, the prison service had refused these requests. Under rule 63(8) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 there was an entitlement to visit a prisoner in another prison but only in “exceptional circumstances”. The petitioners (or applicants) argued that as they were in a relationship the refusal to allow visits violated their right to respect for family life under article 8, and that they had suffered discrimination on the basis of their sexual orientation.
The decisive issue under article 8 was whether the petitioners’ life together was of sufficient quality to engage the protection of the article. If not, any decision by the Prison Service to refuse inter-prison visits could not violate their right to respect for their family life.
The judge was clear that despite the horrendous crimes committed by the petitioners it was not permissible under the ECHR to deprive prisoners of their human rights unless such deprivation was necessarily incidental to incarceration. Like everyone else, prisoners enjoy the protection of article 8 and there is no justification for denying inter-prison visits as part of their punishment.
It was for the petitioners to demonstrate that they were in relationship of sufficient ‘quality’ to engage article 8. The evidence was equivocal, suggesting that the motivation for seeking more contact with one another was to assist with preparations for various legal proceedings. There were also contradictions in the evidence as to whether the two had a sexual relationship. Moreover, since September 1997, O’Neill and Lauchlan had been simultaneously at liberty for only 32 months which, it was argued for the respondents, was scarcely enough time to constitute a ‘life partnership’. These were relevant factors for the judge, but not determinative.
The key consideration for the judge was that during their brief spells of liberty the most powerful evidence of the petitioners’ togetherness was their involvement in sexual offending against young males. Referring to the comments of the sentencing court in 2010, the judge found that for many years the petitioners’ whole lives had been focussed on finding victims to groom and sexually abuse. The quality (or otherwise) of their life together was demonstrated by the depraved offences of which they were convicted. The criminal record showed that the petitioners were “partners in crime” rather than “partners in love”.
The judge accepted that it was dangerous to pass judgment on the value of someone’s family life, but it had to be done. He concluded that, on the evidence, the life which the petitioners had together was “so negative that it cannot be ‘family life’ as that concept should be understood.” Their relations with one another “do not engage, do not attract the support of, do not merit the protection of, the ‘family life’ provisions of article 8 ECHR”. The petitioners had failed to show that they had a life together of a type and quality which engaged article 8.
At the end of his judgment, the judge emphasised the need to maintain respect for the ECHR as a source of law. He held that to extend protection for qualified rights such as article 8 to “egregious conduct far beyond European norms…undermines respect for the Convention and the rule of law.” Whilst the prison service was free to arrange inter-prison visits for the petitioners, the Convention could not oblige it to do so.
The judge dealt with the allegation of discrimination under article 14 very briefly. As the Prison Service had not failed to secure the petitioners’ rights under article 8, it followed that there had been no violation of article 14. Technically, this is the wrong way to frame an article 14 analysis. Article 14 prohibits discrimination in the enjoyment of Convention rights but to engage article 14 it is not necessary to show a violation of, or even an interference, with another Convention right. It is enough that a particular decision falls within the “ambit” of a substantive right making it possible for article 14 to be engaged even though article 8 rights have been secured (otherwise, article 14 would be redundant). However, given the judge’s conclusion that the petitioners did not enjoy a relationship of sufficient quality to engage article 8, it could be said that the decision to refuse inter-party visits would not fall within the “ambit” of article 8. In this case at least, the point is academic.
Given the broad concepts of family life under the ECHR it is increasingly rare for a court to find that article 8 is not even engaged on the basis of the type of relationship in question. Clearly the judge had little time for the petitioners in this case, describing their crimes as being of “extreme depravity” and commenting on their “litigiosity”. Whilst the judge emphasised the importance of extending human rights protection to everyone, he was concerned about the damage to the reputation of the Convention and the rule of law that would follow if the protection of family life were to be extended to the relationship between the petitioners. In this regard, he was surely correct.