Slopping Out in Scottish Prisons
The practice of slopping out i.e. the absence of access to integral sanitation was a feature of prison life in Scotland from time immemorial. The unacceptability of this practice however has been made clear on numerous occasions by the European Committee for the Prevention of Torture (CPT) in its many visits to the UK.
In prisons in England and in HM Prison Barlinnie as long ago as 1994 the CPT condemned the conjunction of the triple vices of: slopping out, overcrowding and poor regime (being incarcerated within the cell for 23 hours per day) as amounting, in its view, to inhuman or degrading treatment or punishment – echoing the terms of Article 3 of the European Convention of Human Rights.
The CPT has published many reports about the conditions of Scottish prison life which are unacceptable and incapable of any form of justification, for example, dog boxes, the housing of prisoners in tiny cells as they are processed upon admission to the prison.
One prisoner Robert Napier had had enough of enduring the appalling conditions and decided to instruct solicitors to challenge the previously accepted conditions of detention.
Mr Napier’s petition commenced in 2001 seeking to challenge slopping out as being in breach of Article 3 of ECHR in that it amounted to inhuman or degrading treatment or punishment. Mr Napier was successful in obtaining and interim order transferring from the conditions complained of. Part of the argument employed in that interim hearing was to rely upon the many, varied and repeated intimations to the United Kingdom Government of the unacceptability with reference to European standards of the conditions in HM Prison Barlinnie. Read Lord MacFadyen’s opinion here
At proof considerable resources were marshalled to substantiate the case put forward by Mr Napier. International experts in prisons were brought to the Court of Session in Edinburgh, architects, psychologists, psychiatrists, food nutritionists and other medical experts were lead in evidence. Lord Bonomy concluded that the conjunction of the triple vices overcrowding, slopping out and poor regime amounted to a breach of Article 3 ECHR. He awarded Mr Napier damages. Read Lord Bonomy’s opinion here. The Scottish Minsters appeal against that judgement was refused. Read the appeal judgement here.
In the wake of Mr Napier’s action many hundreds of cases have been raised by Taylor & Kelly on behalf of disaffected prisoners who also have been subjected to slopping out conditions.
The case of Somerville, full details of which can be read here, became a test case for the time limit to which human rights claims were subject to. Initially the prison service accepted that proceedings had been brought within one year from the date within which slopping out conditions had been experienced they would pay out. Many hundreds of Taylor & Kelly clients received damages as a result of this decision from the Scottish Ministers.
Many hundreds of other prisoners had to await the outcome of the House of Lords decision in Mr Somerville’s case to determine upon the time limit to be applied. In the wake of that decision the Scottish Government paid out many millions of pounds to prisoners who were subjected to appalling conditions.
In the wake of the House of Lords decision in Somerville hundreds of other prisoners continued to claim for the periods that they had experienced slopping out. This prompted the Scottish Government to agitate for legislative change to bring in a timebar. This was the subject of minimum controversy. However, Taylor & Kelly managed to place before the Courts many hundreds of further writs on behalf of disaffected clients complaining about the conditions that they had endured. The timebar came into force on 2nd November 2009: from and after that time proceedings required to be raised within a period of one year from the date complained of. Taylor & Kelly no longer commence actions on behalf of clients complaining of historic slopping out complaints.
There remain however many hundreds of claims which remain sisted or frozen pending the resolution of a number of test cases. The test cases will resolve precisely where the timebar falls upon those claims put into Court before the coming into force of the Convention Rights (Amendment)(Scotland) Act 2009. Those test cases will also authoritatively decide upon the nature of just satisfaction damages.
Two Processes
In a series of claims the Scottish Ministers tendered i.e. offered to settle, in cases where Taylor & Kelly prisoner clients had complained of more than one set of convention incompatible prison detention. The Scottish Ministers contended that upon settlement of this one action the Court should effectively strike out or dismiss any other process involving the same prisoner. This issue was debated before Glasgow Sheriff Court in September 2009 and a decision issued from the Sheriff in Glasgow in December 2009. He has upheld the prisoner’s claims that he be allowed to proceed to proof. The action has been appealed with leave of the Sheriff to the Inner House of the Court of Session.
On 29th June 2010 the Scottish Ministers abandoned their appeal.
