Bringing human rights to the prison population

At the end of this month, the long running Napier case will call again at the Court of Session, bringing with it the prospect of conjoining several proofs for the purposes of setting a benchmark in the law relating to the human rights of prisoners and their conditions.

Behind this case and much of the growing jurisprudence of prison law is Tony Kelly, a solicitor with Taylor & Kelly in Coatbridge, whose filing cabinet full of prisoner clients  marks him out as probably the country’s leading practitioner in the field.

While Napier has been primarily viewed as a challenge to the practice of slopping out in Barlinnie – and led to Lord Macfadyen granting an interim order that took Napier out of C Hall in Barlinnie, in fact the petition sought to challenge what have been described as “the triple vices of overcrowding, inadequate lavatory conditions and poor regime activities” which led the The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as far back as 1994 to conclude that the conditions amounted to inhuman and degrading treatment.

Publicity about the case led Kelly into the media spotlight and he further increased his growing public profile when he launched an outspoken attack on the irony of the differences in treatment afforded to Lockerbie bomber Ali Mohmed al-Megrahi.

“I can’t imagine that Mr Megrahi will be housed in the conditions of many of the convicted prisoners in Barlinnie.

“They have to endure a regime that’s pretty appalling. Each of them has to be housed in a cell that’s built for one person but they have to share it with a cellmate. Some of them are locked up to 23 hours a day.

“The inmates are housed in three huge Victorian halls in pretty appalling conditions and I think it’s rather ironic that Mr Megrahi is going to be housed simply a matter of metres away in conditions which will in no way approach the conditions suffered by Scotland’s prisoners.”

In addition to the well-publicised issues of slopping out at Barlinnie, Kelly has also been involved in bringing actions on issues including discipline and mandatory drug testing. Likely to be next on his agenda are the vast array of prison rules and regulations, many of which might be subject to challenge.

“There are so many areas within prisons that could be subject to challenge and litigation as prisoners do need to know their rights and obligations. There are numerous rules that govern what happens in prisons, and prisoners in the main are ignorant of their rights.”

One such example relates to segregation and a Petition before the Court of Session is currently the subject of a period of adjustment by the Petitioner and the Scottish Ministers. In that case an allegation of disorder was made against the Petitioner. Thereafter he was transferred to another prison and immediately placed into segregation. “Sparse reasons” were provided to justify the transfer and segregation. Thereafter the prisoner was placed on the so-called “ghost train” whereby prisoners are moved between various segregation units in the country. At each stop the Governor invokes Rule 80; a major contention is that Rule 80 has been improperly invoked and the procedure, whereby Scottish Ministers effectively rubber stamp decisions of the Governor, is fundamentally flawed.

“The Scottish Ministers are meant to renew the authority but ordinarily this is in fact done by a civil servant and employee of the Scottish Prison Service at HQ. There are a whole host of public law aspects of decision making in Government that we think are capable of challenge.”

The other areas of challenge before the Court relate to the absence of any intimation or information about the prisoner’s plight being given coupled with the failure within the present system of a facility to allow the prisoner a right to make representations.

Prison discipline is another area where Kelly anticipates further litigation.

“These are the rules that prisoners know most about because they come into contact with them. There are a whole raft of rules outlining what the governors and prison officers can do in relation to an allegation. Most of the time that is done without reference to legal advice or lawyers and often pretty serious consequences could fall upon a prisoner in relation to punishments imposed and what happens to a prisoner’s progress through the system. In the main all these decisions are carried out without reference to lawyers. It’s not being disrespectful to prisoners, some of them know the rules better than me, but in the main clients we come into contact with for the first time know nothing about the rules of procedure and need advice.

“I think the cases we have taken up such as those relating to prison conditions were ripe for consideration. It was signposted some time ago and with the coming into force of the Convention it was bound to happen at some point. With other areas, such as prisoners becoming more aware of their rights in relation to prison rules, it is really only a matter of time. It has been foreshadowed in lots of reports by the HM Chief Inspector of Prisons and the Scottish Prison Complaints Commissioner.”

Despite his growing catalogue of reported cases, Kelly insists “I don’t want to be seen as someone who goes to court at the drop of a hat, it’s really about appraising prisoners of their rights.”

Nor does he want to claim sole credit for building up his firm’s considerable prison-based clientele. He is eager to record his appreciation of his colleagues who helped him along the way, not least his partner David Taylor and the team at Taylor & Kelly. “Without the excellent support and, dare I say it, tolerance of those around me the work would not have seen the light of day”

Taking up the cause of prisoners is never likely to be a popular one. So what motivates him? Does he view himself as a sort of modern day John Howard?

“Definitely not. I really don’t know what motivates me to do this sort of work. I have been going to see people in prisons since I qualified because that is something I have always done as part of the work I do. I imagine that going into a prison establishment would leave many in the profession sick to the pit of their stomach. But for me the thought of entering one of the corporate firms doing management buy-outs or whatever has no attraction whatsoever, regardless of the potential financial implications.”

He’s reluctant to categorise himself as a socialist or campaigning lawyer.

“In some ways it feels like that, but really I was lucky being in the right place at the right time. I didn’t go looking for these cases, my client came to me. We have clients in just about every prison establishment, and I probably have to go to prisons about three days a week. It’s not pleasant, but it’s not as unpleasant as it is for the guy sitting at the other end of the table.

“So far we’ve only covered a fraction of the issues and I have a cabinet full of prison problems. No two are the same.”