Anonymized Summary of Opinion

Factual and Procedural Background

This opinion was delivered by Judge Hood in the Outer House, Court of Session, in a petition for judicial review brought by the Petitioner against the Respondent concerning a policy on delivery of personal items to persons detained in The Prison. The Petitioner is detained at The Prison and challenged a new property/post delivery policy introduced on 2 December 2024. Affidavits were lodged by the Petitioner and by Attorney McCann (head of operations at The Prison). The substantive hearing took place on 5 September 2025. The Petitioner sought declarators that the policy breached the Equality Act 2010 (sections 19 and 149), contravened rule 6 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, and was unlawful and unreasonable. The Respondent defended the policy as necessary and proportionate to address security concerns about illicit items arriving by parcel.

Legal Issues Presented

1. Whether the Respondent's policy is indirectly discriminatory in terms of section 19 of the Equality Act 2010 (i.e. whether a provision, criterion or practice (PCP) places persons sharing the Petitioner’s protected characteristic at a particular disadvantage and is not a proportionate means of achieving a legitimate aim).
2. Whether the Respondent failed to comply with the public sector equality duty (PSED) in section 149 of the Equality Act 2010 when introducing the policy (in particular whether due regard was given to eliminating discrimination and advancing equality of opportunity).
3. Whether the Respondent's policy contravenes rule 6 of the Prison and Young Offenders Institutions (Scotland) Rules 2011 (the governor's duty to seek to eliminate discrimination on protected grounds).
4. Whether the policy is otherwise unlawful or unreasonable.
5. Whether the declaratory and other remedies sought by the Petitioner should be granted (including whether any declarator would be academic).

Arguments of the Parties

Petitioner's Arguments

• The Petitioner argued that he has the protected characteristic of race/nationality. The policy (which requires a prisoner to have had no visits for 3 months before receiving parcels by post, and otherwise requires pro-forma authorisation) disadvantaged prisoners whose families live further away (for example, families in The State), and therefore indirectly discriminated against those sharing the Petitioner’s protected characteristic contrary to section 19 of the Equality Act 2010.
• The Petitioner contended the Respondent failed to fulfil the PSED at the time the policy was introduced because no Equality Impact Assessment (EIA) was carried out in advance; the later EHRIA was undertaken in parallel with litigation and was therefore of limited weight. The PSED must be exercised with rigour and an open mind and should be evidenced contemporaneously.
• The Petitioner relied on authorities that PSED compliance is a substantive process and not a tick-box exercise; absence of a contemporaneous EIA requires evidence of other substantive compliance with the PSED.
• The Petitioner submitted the policy was arbitrary, unlawful and unreasonable, and that the Prison Rules required elimination of discrimination on racial/national grounds.

Respondent's Arguments

• The Respondent submitted the PCP (the 3-month no-visit rule for parcel delivery by post) is applied to all prisoners regardless of race and does not put those sharing the Petitioner’s protected characteristic at a particular disadvantage. No reliable evidence showed non-local prisoners were less able to obtain hand-delivery from visitors.
• The Respondent relied on the existence of an exemption procedure and on operational experience (including Attorney McCann’s role and affidavit) to show that due regard to equality matters was exercised in substance. The later EHRIA was a genuine exercise and the level of PSED scrutiny required was low because the policy plainly engaged legitimate security aims.
• The Respondent accepted the policy pursues a legitimate aim (prison security and preventing introduction of illicit items) and argued the policy is a proportionate means of achieving that aim; the 3-month measure aligns with other establishments and was rationally connected to the security objectives.
• The Respondent emphasised that the policy relates to parcels, not ordinary correspondence, and that the Petitioner's parcel delivery difficulties in December 2024 were due to non-compliance with the pro-forma requirement rather than an unwillingness to grant exemptions.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hood considered each contested issue in turn and proceeded on the factual basis provided by affidavits and lodged documentation. The analysis included the following key steps, derived from the text of the opinion:

1. Identification of the PCP: the court identified the specific provision under challenge as the policy requirement that parcels may be received by post only where the prisoner has not had a visit in the preceding three months, together with the requirement for pro-forma authorisation and a rule that only one pro-forma may be "live" at a time.
2. Indirect discrimination (section 19): applying Essop and related authorities, the court examined whether the PCP put persons sharing the Petitioner’s protected characteristic at a particular disadvantage compared with others. The court found no secure foundation for assuming non-local or non-Respondent-state prisoners lacked access to visitors who could hand-deliver parcels. The court also noted that, if non-local prisoners received fewer visits, they would often fall into the category able to receive parcels by post (so the PCP did not necessarily disadvantage them). The court accepted there was an exemption procedure available and that the policy exempted certain essential items.
3. Proportionality: having accepted the legitimate aim (prison security and preventing introduction of illicit items), the court analysed proportionality in light of Homer. The court concluded the policy was a rational and proportionate response: it introduced accountability, reduced parcel volumes, and aligned broadly with practices in similar institutions.
4. PSED (section 149): the court acknowledged no EIA was carried out before introduction but emphasised that absence of a formal EIA is not determinative. Drawing on Bailey and Elias, the court evaluated whether "due regard" had been given in substance. It considered Attorney McCann's role, training and affidavit, the features of the policy that addressed different prisoner circumstances (including the three-month rule and exemption), and the operational context. The court concluded that appropriate regard had been had to the matters in section 149(1) and that there was no breach of the PSED.
5. Prison Rules (rule 6): because the court found no indirect discrimination or failure of the PSED, it concluded there was no contravention of the duty in rule 6 to seek to eliminate discrimination on protected grounds.
6. Unlawfulness/unreasonableness: the court reviewed the Petitioner's contention that the policy was arbitrary or unlawful. Finding clear and rational rules, sensitivity to different prisoner circumstances, and commonality with other institutions, the court concluded the policy was not arbitrary, unlawful or unreasonable.
7. Remedies and academic nature of declarators: the court considered Wightman and the need for practical effect. Because the substantive pleas failed on the merits, the court did not determine whether the declarators would be academic; it found no basis to grant the declarators sought.

Holding and Implications

HOLDING: Judge Hood dismissed the petition. The court repelled the Petitioner's pleas and refused the petition. Questions of expenses were reserved.

Implications:

• The direct effect is that the Respondent's property/post delivery policy as introduced on 2 December 2024 remains in force and is not declared unlawful on the grounds advanced by the Petitioner (indirect discrimination under section 19, breach of the PSED under section 149, contravention of rule 6, or for being arbitrary/unreasonable).
• The court did not find it necessary to set any new legal precedent; it applied established principles on indirect discrimination, proportionality and the PSED to the facts of the case. No broader or novel legal ruling was made beyond the application of those authorities to the specific policy before the court.

Disposition

The petition was refused and the Petitioner’s first to fourth pleas-in-law were repelled. All questions of expenses were reserved.

Note on anonymization: All individuals and institutional names in this summary have been replaced with standardized placeholders (e.g., "Petitioner", "Respondent", "The Prison", "Attorney [Last Name]", "Company B") to preserve anonymity. The summary contains only information expressly found in the provided opinion and does not add, infer, or speculate beyond that material.