The European Convention of Human Rights and Fundamental Freedoms (ECHR) was incorporated into Scots domestic law by way of the Scotland Act and into the rest of the UK by the Human Rights Act.
Article 6 of ECHR - does it apply to prison?
Initially it was hoped the courts would apply Article 6 to discipline proceedings within prison but the cases that were heard held that appearances in a prison orderly room did not attract the protection afforded by Article 6. The rationale behind these decisions was that the orderly room procedures were purely disciplinary and did not have the character of a criminal charge or affect the civil rights of a prisoner.
That position has now been eroded by the Scottish decision by Lord Reed in Matthewson v The Scottish Ministers.
That case was a judicial review of the Governor's decision to refuse the applicant representation by his solicitor, though the hearing was adjourned to enable the applicant to seek advice. The prisoner wanted to have the governor's decision overturned. The Scottish Ministers did not resist because they could not show that the Governor's decision to refuse access to a solicitor had been made on a reasonable basis.
The judge held that Article 6, as such, did not apply to orderly room procedures as these did not involve a charge of a criminal nature. He also ruled that Article 6 did not apply in relation to any civil rights - but only because such an argument was not insisted upon by the applicant's agents.
The case did, however, establish the right to an adjournment to obtain legal advice and left open the position relative to whether or not Article 6 could be invoked by the 'civil' route.
The matter was raised again in an appeal before the European Court of Human Rights in the case of Ezeh and Connors v. the United Kingdom. That case looked again at the question of legal representation in an orderly room procedure and the court held that Article 6 did apply in certain circumstances where the offence was analogous to a criminal charge.
The law may yet be further extended to cover every single alleged breach of discipline as any finding of guilt can and does affect the civil rights position of a prisoner.
At the very least, Article 6 now gives each and every prisoner the right to seek advice before a Governor conducts any disciplinary hearing - so call us NOW.
Who would you want advice from in these circumstances - a solicitor, or a fully trained and experienced former solicitor who has also had personal experience (several times) of appearing himself in an orderly room, and also of advising fellow prisoners countless times in relation to their own appearances.
Contact us - you know it makes sense!