Gay paedophile couple jailed for murder ‘do not merit the protection’ of article 8 ECHR



Court of Session Outer House
Court of Session Outer House

Two “predatory paedophiles” sentenced to life imprisonment for murder who claimed the prison service denied them the opportunity to visit each other in jail have failed in a claim for damages.

A judge in the Court of Session rejected the gay couple’s petition for judicial review, in which they claimed that their human rights had been breached and that they were the victims of discrimination.

Lord Stewart heard that the Charles O’Neill, 52, and William Lauchlan, 39, had been convicted of crimes of “extreme depravity”, including the murder of 39-year-old Allison McGarrigle - whose body was never found - in Largs, Ayrshire, in 1997 and disposing of her corpse at sea.

They were imprisoned for life with minimum terms of 30 years and 26 years respectively, and are serving concurrent sentences for a number of sex offences.

The court was told that the murder victim was the mother of a boy who the petitioners had been sexually abusing for years.

When the mother threatened to report the sexual abuse of her son to the authorities, the petitioners killed her and dumped her body in the Firth of Clyde.

The sentencing judge, Lord Pentland, described the petitioners as “highly ruthless and unrepentant individuals with no respect for the law or the values of a civilised society”.

The petitioners, who were locked up in different prisons, HMP Glenochil and HMP Edinburgh, complained that their “right to respect for family life” in terms of article 8 of the European Convention on Human Rights (ECHR) had been “violated” and that they were the victims of “discrimination” because the Scottish Prison Service refused to arrange inter-prison visits for them.

They sought compensation of £35,000 each.

The prison service accepted they had been in a same sex relationship before they were taken into custody in 2008, and that since the case first came to court in November 2014 one inter-prison visit for the pair had already been facilitated.

However, the issues raised in the petition remained live, as they concerned the past attitude of the prison service to the petitioners’ requests for visits and the inter-prison visiting regime.

The judge decided that the prison service had not acted unlawfully towards the petitioners, had not failed to respect the petitioners’ family life in terms of article 8 ECHR, and had not discriminated against them.

“Accordingly, the petitioners are not entitled to damages of human rights ‘just satisfaction’,” Lord Stewart said.

But the judge added that although “no substantive injustice” had resulted to the petitioners, he did accept that the prison rule about inter-prison visits, though not in itself unlawful, was part of an “unlawful regime”.

In the absence of explanatory context, the judge observed that the rule alone did not satisfy the requirements of legality or lawfulness, and the reasons given by the prison service for refusing the petitioners’ requests for inter‑prison visits “tended towards inadequacy”.

The judge explained that the case was not about conjugal visits which are not permitted in British jails, adding: “The key point, it seems to me, is about the quality of the petitioners’ so‑called ‘family life’ and not about the precise type of their ‘family’ relationship, whether cousins, non‑copulating cohabitants or intimate same-sex partners.

“It is a dangerous thing, I accept, to pass judgement on the value of someone else’s family life. Sometimes it has to be done.”

In a written opinion, Lord Stewart said: “In this case I feel justified in saying that the life Charles O’Neill and William Lauchlan have had together when at liberty since 1993, to the extent evidenced to me, is so negative that it cannot be ‘family life’ as that concept should be understood.

“Their relationship and relations between each other do not engage, do not attract the support of, do not merit the protection of, the “family life” provisions of article 8 ECHR.

“Alternatively it is for the petitioners to demonstrate that they had and have a life together of a type and quality that engages article 8 ECHR; and they have failed to do so.”

He added: “The basis on which I have rejected the petitioners’ complaints is not one pled distinctly on behalf of the prison service:  but it is in my view the necessary result of the material relied on by the petitioners.

“As a public authority the court has an independent duty to uphold European Convention rights which, as I interpret it, includes the duty to maintain respect for the European Convention as a source of law.

“To extend protection for qualified rights like article 8 ECHR to egregious conduct far beyond European norms - which is what the court is being asked to do in the present case - undermines respect for the Convention and the rule of law.”

© Scottish Legal News Ltd 2020