Submissions for Petitioners: HMP Peterhead

The following is a summary of the submissions made on behalf of the Petitioners in the judicial review of the conditions of detention at HMP Peterhead ruled upon by Lady Dorrian on 12th May 2011

CULPABLE DELAY:  THE FAILURE TO END SLOPPING OUT AT PETERHEAD 1991 – 2010

1.    The historical anomaly of Peterhead

The continuing existence of Peterhead prison has for many years been anomalous.   Its size, location and construction were dictated by its original use as a prison for those committed to penal servitude, working each day to extract granite from the nearby quarry and building the Peterhead breakwater.   These functions having long since ceased, Peterhead remained, by 1990, a relatively large yet Spartan prison, remotely located many miles from the central belt from where came the great majority of its prisoners (and their families), and built of a uniquely massive granite construction which was not amenable to upgrading at any reasonable cost.

A critical feature of the challenge to the conditions within HM Prison Peterhead is the conflict between these two factors; between the operational imperative to close Peterhead because it was neither fit for purpose nor capable of being made fit for purpose, and the political pressure to keep it open in the interests of the jobs of the staff and the local economy.

2. Background from 1991 to 2002

There has been universal recognition at all levels throughout the United Kingdom for many years, and in any event since no later than 1991, that denying prisoners proper access to proper sanitation and requiring them to slop out was degrading and unacceptable. See Woolf and Tumin Report on Inquiry into Prison Disturbances 1990, published February 1991:

“Sanitation

1.192 After overcrowding, the most destructive feature of the prison system at the present time is the lack of sanitation and the degrading process of slopping out which is its consequence. It destroys the morale of prisoners and staff. It is uncivilised and a symptom of an archaic prison system. The Prison Service accepts that slopping out has to be eradicated, but as yet there is no public commitment to a date on which this practice is to end and all prisoners are to have integral sanitation.

11.108 When Courts send prisoners to prison they are entitled to expect that the prisoners will be treated in accordance with the Prison Service’s “duty to look after them with humanity”. The Prison Service itself is anxious to be proud of the fact that it fulfills that duty. However, to lock up prisoners for long periods at a time with no alternative but to use a bucket for their basic needs (which then has to remain in the cell, sometimes for many hours) is manifestly inconsistent with and makes a mockery of that duty. It is not just. The commitment we have proposed would remove a practice which is a blot on our prison system and which undermines the justice of the sentence which prisoners are serving.”

This recognition is not confined to slopping out in ‘doubled up’ conditions. In fact, if not law, it was accepted by the Governement by no later than 2000 that “slopping out is a degrading practice for prisoners and staff – there is no question about that”. [Deputy Justice Minister Angus Mackay, addressing the Scottish Parliament on 18 May 2000 here]

Indeed slopping out has been described by one informed commentator as “the single most degrading element of imprisonment [of the last] century”. [Paul Cavadino, Chair of Penal Affairs Consortium, speaking in 1996 here].  It certainly has no place in this one.

3. CPT Annual General Report 1991

Denial of proper access to proper sanitation and slopping out is contrary to the commonly accepted penal standards of the great majority of the 47 member states of the Council of Europe.  As the CPT, the relevant Council of Europe body, put the matter in its 2nd General Report (1991):

“Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment. [paragraph 49 of CPT/Inf (92) 3]

This observation is not confined to shared prison cells.

4. CPT 1991 Report to United Kingdom

On 26 November 1991 the CPT published its report on its visit to the United Kingdom from 29 July to 10 August 1990 under reference CPT/Inf (91) 15 [EN]. The United Kingdom was, in effect, directly warned by the CPT that denying prisoners proper access to proper sanitation and slopping out was unacceptable, and liable to be found to be inhuman or degrading . The CPT also commented, in strong adverse terms, on certain other consequences of a lack of access to toilet facilities, including the requirement to spend many hours in the presence of one’s own excreta and ‘bombing’:

“46. The delegation saw many such packages on the ground outside prison wings and on the roofs of adjacent buildings; the problem appeared to be particularly acute at Wandsworth. Certain prisoners (known euphemistically at Wandsworth as the “bomb squad”) were assigned to collect the packages and other rubbish. However, it was clear that a considerable time might pass before the packages were removed. Refuse of this nature is, of course, extremely unhygienic and will tend to attract vermin. Moreover, a collection of the packages is a thoroughly dismal sight, for prisoners, prison staff and visitors alike.

47. The CPT considers that the act of discharging human waste, and more particularly of defecating, in a bucket or pot in the presence of one or more other persons, in a confined space used as a living area, is degrading. It is degrading not only for the person using the bucket or pot but also for the person(s) who are obliged to hear and smell his activities.

The other consequences of the absence of integral sanitation – the many hours often spent in the presence of buckets or pots containing one’s own excreta and that of others (or the removal of some of it through the cell window) and the subsequent slopping out procedure – are scarcely less objectionable. The whole process must, from start to finish, be extremely humiliating for prisoners. Moreover, the CPT’s delegation was left in no doubt that slopping out was also very unpopular with the prison officers who had to supervise it; indeed, the task must be debasing for them.

While accepting that installation of ‘simple sanitation’ in cells was a significant step forward, the CPT pointed out that provision of sanitary annexes would be ‘a far preferable solution’, given that even with single occupancy, simple integral sanitation would still mean that the “prisoner could be said to be living in a toilet”:

“50. …..that even with single occupancy, the above-mentioned method of providing integral sanitation still means that the prisoner could be said to be living in a toilet” [paragraph 50 of the 1991 CPT Report]

In addition, the CPT recommended that, pending installation of ready access to toilet facilities, prison officers should receive clear instructions to the effect that a request made by a prisoner to be released from his cell for the purposes of using a toilet facility was to be granted, unless significant security considerations required otherwise:

“71. Pending the installation of integral sanitation or other means of ready access to toilet facilities, various steps of a very practical nature should be taken to alleviate the effects of the existing situation. The CPT does not believe it is necessary for it to make proposals in this area.

However, it does wish to recommend that prison officers receive clear instructions to the effect that a request made by a prisoner during the day to be released from his cell for the purposes of using a toilet facility is to be granted, unless significant security considerations require otherwise.” [paragraph 71 of the 1991 CPT Report.]

A similar recommendation was also made by Woolf and Tumin:

“11.109 Secondly, we would wish the Prison Service to investigate the introduction of procedures which, until such time as the main target is met, would allow prisoners to come out of their cells at night in order to go to the lavatory in their wings or units. We have in mind, particularly, the most overcrowded local prisons where there may at present and for some time to come be two, or even three prisoners in a cell, who are required to use a bucket or pot to relieve themselves. We propose that each Governor whose establishment has some cells with integral sanitation and some without should be instructed to arrange (so far as this is practical) the occupation of the cells without sanitation so that as many as possible of those cells are occupied by a single inmate.

11.110 In addition, we propose that all Governors should consider with their Area Manager and their staff whether it is possible, with the addition of some extra staff and until such time as the promised integral sanitation is installed to unlock inmates from cells without sanitation in controlled numbers and under supervision during the course of an evening and before, say, mid-night. It would be impractical to unlock such prisoners at these times on demand, but rotas might be established so that prisoners would know broadly when they were likely to be allowed to go to the lavatory.”

Following publication of the Woolf and Tumin Report in February 1991, and in the light of the CPT’s warning in its 1991 Report to the United Kingdom, a political decision was made to end slopping out in England and Wales, and to allocate the necessary resources to that end.   The United Kingdom gave assurances to the CPT that slopping out would be ended by 1994 as regards England and Wales – and effectively achieved that by April 1996:

“Provision of access to night sanitation by all inmates in prisons in England and Wales is being given the highest priority. The Government announced in February 1991 a programme to end slopping out completely by December1994. This is a much shorter timescale than had previously been envisaged, and indeed is significantly earlier than the target date recommended by the Woolf inquiry into prisons in England and Wales. (p.13 UK Government Response to CPT 26th November 1991)

In 1991 the CPT had also specifically sought from the UK Government information regarding the installation of integral sanitation in prisons throughout the UK.  It then queried the discrepancy as regards the relatively greater lack of ready access to toilet facilities in Scottish prisons – and the contrast as regards the apparent lack of plans to end it in Scotland. The figures provided by the UK to the CPT suggested no planned reductions in places without access to sanitation at all in years 1993/4 and 1994/5.  However the CPT was told (in April 1993) that ‘work is continuing… [but that] a date has not yet been set for ending slopping out’ in Scotland:

“63. Within the Scottish Prison Service work is continuing on access to night sanitation. By mid 1993 over half of the prisoners in the Scottish prison system will no longer have to “slop out”. A date has not yet been set for ending slopping out everywhere, but the Scottish Prison Service’s strategic plan (the Agency Framework Document) is likely to include amongst its key targets an increase in the percentage of prisoners with access to night sanitation.” [UK Response to the CPT 15 April 1993]

5. 1996 CPT Report to the United Kingdom

The United Kingdom was in effect further warned by the CPT in 1996, following its visit to Scotland in 1994, that denial of proper access to proper sanitation and slopping out (in Barlinnie) was inhuman and degrading:

“343. Conditions of detention in C Hall were quite unsatisfactory. The vices of overcrowding, inadequate lavatory facilities and poor regime activities were all to be found there; in addition, many of the cells were in a poor state of repair. As the CPT has already had occasion to make clear in the past, to subject prisoners to such a combination of negative elements amounts, in its view, to inhuman and degrading treatment.” [para. 343 of the 1996 CPT Report to the UK]

It is clear from its report that the CPT was left with the impression that a target date of 1999 had been set for ending slopping out in all prisons in Scotland:

“349. Apparently, more than half of the prisoners in the Scottish prison system no longer have to “slop-out” (cf. the United Kingdom’s follow-up report: CPT/Inf (93) 9, paragraph 63), and the CPT’s delegation was informed by the Scottish Prison Service that it should be possible to introduce integral sanitation in all prison cells by 1999. The Committee had hoped that this could have been achieved by an earlier date.” [paragraph 349 of the 1996 CPT Report.]

If there was no such target, then the CPT was either deliberately misled, or it was permitted to labour under a misapprehension.   In light of this, however, the CPT recommended that

“…the provision of integral sanitation in cells in Scottish Prisons (or other means of ready access at all times to a lavatory) be accorded a very high priority; it would be most desirable for the current target date of 1999 for he completion of this task to be brought forward.”  (Para.349 of the 1996 Report to the UK)

As in the 1991 Report, the CPT also recommended in its 1996 Report that, as an interim measure, pending installation of integral sanitation or other means of ready access to toilet facilities, prison officers should receive clear instructions to accede to requests from prisoners to be released from their cells for the purpose of using the lavatory:

“350. Pending the installation of integral sanitation or other means of ready access to toilet facilities, it is recommended that prison officers receive clear instructions to the effect that a request made by a prisoner during the day to be released from his cell for the purpose of using a lavatory is to be granted, unless significant security considerations dictate otherwise.” (Emphasis in original)

These comments by the CPT were clearly intended to be of urgent, general application to all Scottish prisons, including Peterhead.  However, the CPT also specifically recommended that integral sanitation be installed at Peterhead:

“314. … The cells did not have integral sanitation, but were equipped with portable chemical lavatories, which appeared to function satisfactorily. Prisoners made no complaints to the delegation about these facilities. Artificial light was adequate in all of the cells; however, natural light was rather poor in some cells, notably on the ground floor (level 1) in D Hall, where the windows were particularly small.

It appeared to be difficult to regulate the establishment’s heating system, with the result that, at least when visited in May, the cells were overheated. The effects upon prisoners of this shortcoming were exacerbated by the fact that there was no effective system of ventilation. The delegation observed that, in many cells, one of the small panes of glass had been replaced with a square of plywood fitted with a handle. This could be removed by prisoners in order to allow some fresh air to enter the cells, but was an entirely unsatisfactory substitute for a proper ventilation system.

The CPT recommends that steps be taken to address these problems and, in this respect, would like to be informed of any plans to carry out more extensive renovation work in the establishment, including the installation of integral sanitation.” [paragraph 314 of the 1996 Report]

That was notwithstanding that porta potties had, at the time of the CPT visit in 1994, only recently been introduced at Peterhead, as a ‘temporary measure’. In response to this recommendation the UK Government stated in its response to the 1996 CPT Report that:

“Planning is underway for overcladding the walls of A and D and B and C halls to improve the weather protection as water penetration is a serious problem. At the same time external insulation will be provided and the size of the cell windows increased, with security window grills and weather screens fitted. In D Hall, it is recognised that the existing control systems for regulating heating requires upgrading, as they do not allow for sensitive adjustments of temperature, and options for improvement are being examined. Integral sanitation is to be installed at Peterhead Prison in 1997/1998. The upgrading of B Hall has yet to commence, but it is scheduled to begin in early 1996. It is anticipated that this upgrading will take approximately 4 months.”

[Government Response to 1996 CPT Report p.65]

Plainly that did not happen. According to the evidence of a SPS Board member before the Court of Session, there was never any firm intention, let alone a decision, to install integral sanitation at Peterhead around this time.  According to him, there was nothing more than some form of ‘feasibility study’ – and plainly it was not regarded as feasible to do it.   However, no sufficient explanation was offered to the Court as to how the CPT came to be told – in answer to a direct inquiry by it – that integral sanitation would be installed at Peterhead by 1997/8.  The Board member was unable, in cross examination, to even recall whether the Board had in fact rejected the feasibility study before the CPT was told in March 1996 that integral sanitation was to be installed at Peterhead.  He “hadn’t been able to get the file yet”.  When it was suggested to him that it was “pretty obvious that the CPT was misled” he replied that he believed “it would be an unintentional outcome from the communication”.  But that cannot be right:  the statement to the CPT regarding integral sanitation at Peterhead is clear and unequivocal.  The SPS Board member also disputed that it had ever been SPS policy (neither “possible” nor “anticipated”) to end slopping out in Scotland by 1999, notwithstanding that the CPT was clearly left with the impression that that was then the target date to do so.  In all the circumstances it is hard to avoid the conclusion that the CPT was either deliberately or recklessly misled.

6. SPS Refurbishment

Generally, however, it seems that there was an SPS policy in place around this time to seek to refurbish parts of the Scottish prison estate – a rolling refurbishment programme which had been taking place since 1993.  That policy included the installation of integral sanitation in at least some prisons in Scotland:

“2.3 Until very recently there had been little or no change to the basic structure of the prison for over a century. However, a £25 million rolling refurbishment programme was now underway and had started with the emptying of ‘D’ Hall in early 1996 to enable contractors to install integral sanitation in the cells. An extra accommodation block, Letham Hall, had been erected as a temporary but smaller replacement, this being possible because of vacant patches in the large area of ground occupied by the prison. However, the closure of a main accommodation Hall had occurred at much the same time as the national prison population had begun to rise and so exacerbated the chronic overcrowding which has bedevilled the establishment for many years.

3.20 Ablution areas were located on each flat but were insufficient to meet the basic needs of 80 prisoners. We felt that the living conditions in the Hall were particularly degrading and did not meet many basic requirements. That said, the Hall was due to close in 1998 as part of the rolling refurbishment programme.” [HM Chief Inspector of Prisons for Scotland 1997 Report on HMP Barlinnie at paragraphs 2.3, 3.20.]

However, towards the end of 1998, a review was carried out of the work required on the whole prison estate and at that time further refurbishment work was suspended while future strategy was considered. From that review there emerged a revised timetable and strategy for providing access to night sanitation and thus ending slopping out.  A revised target or predicted date was set for 2004.  The revised strategy included introducing new houseblocks in certain prisons, rather than upgrading all the existing Victorian buildings:  see Napier v Scottish Minsters, 25th April 2004, per Lord Bonomy at paragraph 85:

“[85] … Towards the end of 1998 a review was carried out of the work required on the whole prison estate, and at that time refurbishment work was suspended while future strategy was considered. From the review there emerged a revised timetable for providing access to night sanitation and thus eliminating slopping out. The revised target, or predicted date, was 2004. The revised strategy included introducing new house blocks in certain prison complexes, rather than upgrading existing Victorian buildings, which were difficult and expensive to improve…”

Thus in his foreword to the HM Chief Inspector of Prisons for Scotland 1998/1999 Annual Report, published shortly after devolution, the Minister for Justice stated that:

“By the end of the current financial year, some three quarters of available prisoner places will have access to night sanitation, compared with fewer than half at the start of the 1990s, and a target to end slopping out by 2004-05 has been set.”

Plainly this target was not met, and has still not been met.  Perhaps that is not surprising, standing that in oral evidence before the Court, a member of the SPS Board was not apparently aware that there had been such a target.   If there was no such target, then either the Minister was misled by the SPS or others into thinking that there was, or his statement was simply untrue.

Consistent with the new ‘houseblock’ policy, in the same 1998/9 report, HM Chief Inspector of Prisons for Scotland was apparently informed by the Governor of Peterhead that his ‘next priority’ would be to end slopping out by 2004, although this might entail the construction of some new houseblocks.  He records:

“As far as other longer term building projects were concerned, the Governor indicated that his next priority would be an end to slopping out by the year 2004 (though this might entail the construction of some new house-blocks).”

And by the time of the HM Chief Inspector of Prisons for Scotland Annual Report for 1999/2000, there is the following passage (which would appear to date from the time of the inspection carried out in September 1999):

“We were advised, however, that as an alternative to spending vast sums of money to upgrade the existing buildings which would still have a limited life span, the long term solution to the problem was for new accommodation blocks to be built on the site of the existing playing field.  We were advised by the Governor that such a proposal now had the approval of the SPS Board and present plans envisaged a ‘new’ prison, with accommodation for around 350 prisoners in cells with integral sanitation, would be operational by around 2003.  (We were subsequently advised that on present estimates, this would be at a cost of approximately £14.5 million)”  [Paragraph 3.11 of the HM for Scotland Inspector of Prisons for Scotland Annual Report 1999/2000]

Plainly that did not happen.  Either the HM Chief Inspector of Prisons for Scotland was misled by the Governor, or the Governor had mistakenly believed there to be SPS Board approval for the proposal, or this proposal was indeed approved by the Board, but then not proceeded with.

In December 1999, the Government announced a further review of the SPS prison estate, and the ‘new houseblock’ strategy was not put into effect.

1.  The Scottish Prison Service has been taking steps to improve the efficiency and effectiveness of the prison estate. Following the ‘Living Within Our Means’ Review in Autumn 1999 there was a rationalisation of the estate involving closures of underutilized accommodation and amalgamation of smaller units.

2.  Thereafter, it was clear that a more fundamental examination of the prison estate was required. Since the issues involved significant long-term investment in the SPS, it was agreed that Scottish Ministers would take the final decisions on the future direction arising from the findings of the SPS work known simply as the ‘Estates Review’. This Review was announced on 17 December 1999.

Pending the completion of the Estates Review significant work to end slopping out was suspended.  Accordingly, between December 1999 and March 2002, the Government’s position to the Scottish Parliament on the ending of slopping out in Scotland was repeatedly to the effect that plans to do so ‘must await the outcome of the Estates Review’:

27 September 2000

Roseanna Cunningham (Perth) (SNP): On prison funding, the minister outlined a long list of areas that required expenditure, and said what the increased expenditure was expected to cover, but he did not specifically mention slopping out in Scotland’s prisons. I raise that matter now because of the imminent implementation of the Human Rights Act 1998. Has the minister made an estimate of the cost of ending slopping out now, should there be a challenge to that practice after 3 October and were that challenge to be—as is widely anticipated—successful? What time scale does he envisage for ending slopping out, given the likelihood of that challenge? How does that potential challenge fit into the figures that the minister has given us today? A small amount of money seems to be expected to cover a great many things, including the ending of slopping out. I do not see how it can all be achieved.

Mr Wallace: I mentioned access to night sanitation in my statement. There is a view that we must continue to make progress towards ending slopping out. Some 25 per cent of prisoner places do not have access to night sanitation. As Ms Cunningham and the Parliament will know, the estates review is being undertaken by the Scottish Prison Service. Once that review is complete and proposals have been put to ministers, I will have a better idea of—and will be better able to indicate—the likely time scale for ending slopping out. I can indicate that £10 million extra capital funding has been provided to accelerate the ending of slopping out. However, Ms Cunningham may recall from evidence that was given to her committee that ending that practice is about not only resources, but places being available to decant prisoners to while the necessary refurbishment work is done.

20 December 2000 S1W-9814

Dorothy-Grace Elder (Glasgow) (SNP): To ask the Scottish Executive what its plans are to end slopping out and expedite in-cell sanitation at Barlinnie Prison following Her Majesty’s Chief Inspectorate of Prisons Annual Report 2000.

Mr Jim Wallace: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service to respond. His response is as follows:

Plans to end slopping out at Barlinnie Prison must await the outcome of the fundamental review of the SPS Estate. As an interim measure, however, planning is underway for the installation of in-cell sanitation in B Hall at the establishment.

9th August 2001 S1W-16977

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive what the cost of ending slopping out in HM Prison Barlinnie would be.

Mr Jim Wallace: I have asked Tony Cameron, chief executive of the Scottish Prison Service, to respond. His response is as follows:

The options for ending slopping out in all Scottish Prisons, including HM Prison Barlinnie, are being considered as part of the Estates Review which is currently underway. Costings will be published as part of this exercise.

16 August 2001 S1W-16732

Phil Gallie (South of Scotland) (Con): To ask the Scottish Executive what directions have been given to the Governor of HM Prison Barlinnie in respect of ending slopping out

Holding answer issued: 27 July 2001

Mr Jim Wallace: I have asked Tony Cameron, chief executive of the Scottish Prison Service to respond. His response is as follows:

No directions have been given to the Governor. The options for ending slopping out in all Scottish prisons, including HM Prison Barlinnie, are being considered as part of the Estates Review which is currently under way.

27 September 2001 S1W-18109

Michael Matheson (Central Scotland) (SNP): To ask the Scottish Executive what its timetable is for ending slopping out, broken down by prison.

Iain Gray: The timetable for ending slopping out is being considered as part of the Estates Review which is currently under way.

27th September 2001

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive what plans it has to allocate resources from the £17 million underspend in the Scottish Prison Service budget for 2000-01 to the phasing out of slopping out in prisons. (S1O-3823)

The Deputy Minister for Justice (Iain Gray): The Scottish Prison Service has received £17 million in end-year flexibility funding in 2001-02. That funding has been allocated to the capital building programme, which includes investment in prisoner accommodation.

Lord James Douglas-Hamilton: Will the minister keep in mind that slopping out is a degrading practice, that it is extremely disagreeable to prisoners and prison officers alike and that, because of European convention on human rights implications, the problem should be addressed with much greater urgency—certainly before 2005?

Iain Gray: I do not disagree with Lord James’s key point—that slopping out is a practice that all members want to be ended as soon as is practically possible. In 1990 only 40 per cent of Scotland’s prisoners had access to night sanitation. That figure has risen to 70 per cent and the target for this financial year is 76 per cent. The key opportunity to end slopping out completely will come following the publication of the estates review. That is not to say that the Prison Service is not working day in, day out to improve the situation. The figures that I have cited amply demonstrate that.

1 October 2001

S1W-18230

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive what the estimated underspend of the Scottish Prison Service is in 2001-02.

Mr Jim Wallace: £8-12 million.

S1W-18231

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive why the Scottish Prison Service did not spend its allocated budgets for 1999-2000 and 2000-01 and why resources available from the underspend were not reallocated to tackle any issues of overcrowding and staff morale.

Mr Jim Wallace: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service (SPS), to respond. His response is as follows:

The underspend in 1999-2000 and 2000-01 was primarily due to the timing of expenditure on committed capital projects, including investment in prisoner accommodation and improved staff facilities. In both years, the full underspend was carried forward into the following financial year as end-year flexibility funding and was therefore available for spending by SPS on the full range of its activities.

S1W-18232

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive whether all projects in the Scottish Prison Service’s capital building programme scheduled for completion in 2001-02 will be completed on schedule.

Mr Jim Wallace: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service (SPS), to respond. His response is as follows:

SPS anticipate that all projects in the SPS’s capital building programme scheduled for completion in 2001-02 will be completed on schedule.

S1W-18235

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive what resources allocated to the Scottish Prison Service for its capital building programme in the current financial year are expected to remain unspent.

Mr Jim Wallace: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service (SPS), to respond. His response is as follows:

SPS anticipate that £8-12 million of the capital building programme in 2001-02 will be incurred in the next financial year due to the profile of construction expenditure.

S1W-18236

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive whether it will give priority to the ending of slopping out in prisons and bring forward proposals to end this practice before 2005.

Mr Jim Wallace: Slopping out is a priority issue being addressed by the Estates Review, which will contain options for ending this unacceptable practice,

However to take nearly two and a half years to finalise the review, and to fail to take any significant action to end slopping out in Scottish prisons meantime, in itself represented a culpable and unjustifiable delay by the Government in the face of the Woolf & Tumin Report, the CPT Reports (1991 & 1996) and the responses made by the United Kingdom government thereto.

By the publication of the Estates Review in March 2002 there had been a period of around four years in which the Governement and their predecessors had, for the reasons outlined, effectively suspended any significant action to end slopping out in Scotland.  At best the need for urgency in providing proper sanitation, as stressed by the CPT in 1991 and 1996, was totally lacking at this time. In the period 1998 to 2002 nothing was done to eradicate slopping out at Peterhead.

Yet on 1 August 2001 SW1-16810 they acknowledged that slopping out continued to occur notwithstanding that there was £17 million underspend in the SPS budget for the financial year 2000/2001.

Lord James Douglas-Hamilton (Lothians) (Con): To ask the Scottish Executive whether there will be funds available from the Scottish Prison Service budget for 2000-01 through end-year flexibility and, if so, whether such funds, or a portion thereof, will be used to end slopping out at HM Prison Barlinnie

Angus MacKay: No final decisions have been taken on the allocation of end-year flexibility accruing from 2000-01 budgetary underspends to any Scottish Executive department/agency

As already noted, £14.5 million was the cost which the HM Chief Inspector of Prisons was told had been approved to build a new houseblock at Peterhead by 2003:

“We were advised, however, that as an alternative to spending vast sums of money to upgrade the existing buildings which would still have a limited life span, the long term solution to the problem was for new accommodation blocks to be built on the site of the existing playing field. We were advised by the Governor that such a proposal now had the approval of the SPS Board and present plans envisaged that a ‘new’ prison, with accommodation for around 350 prisoners in cells with integral sanitation, would be operational by around 2003. (We were subsequently advised that on present estimates, this would be at a cost of approximately £14.5 million.” [Paragraph 3.11 of the the HM Chief Inspector of Prisons for Scotland Report]

7. 2000 CPT Report to the United Kingdom

The delay in the production of the Estates Review between 1999 and 2002, and in taking any significant action to end slopping out during this period, should also be set against the background that on 30th January 2000 the CPT reported further to the UK. Again it condemned the lack of proper access to proper sanitation and slopping out, this time at Isle of Man Prison

112. The negative effects of the high cell occupancy rates were exacerbated by the fact that the cells in A and B Wings were not equipped with integral sanitation; a slopping out system was in operation.

As was indicated in the report on its 1990 visit to the United Kingdom (cf. CPT/Inf (91) 15, paragraph 47), the CPT considers that the act of discharging human waste in a bucket or pot in the presence of one or more other persons, in a confined space used as a living area, is degrading for everyone concerned. A slopping-out system has a number of other consequences which are scarcely less objectionable. The CPT therefore greatly welcomes the Isle of Man’s policy objective of integral sanitation in single cells (cf. paragraph 101). [paragraph 112 of the 2000 CPT Report to the UK]

Again there was a recommendation by the CPT that, pending provision of proper access, a request by a prisoner to be released from his cell for the purpose of using a toilet facility should be ‘granted without delay’”

125. In order to alleviate the consequences of the slopping out system, the CPT recommends that prison officers receive clear instructions to the effect that when a prisoner held in a cell without integral sanitation requests to be released from his cell during the day for the purpose of using a toilet facility, that request is to be granted without delay. [paragraph 125 of the 2000 CPT Report]

8. The 2002 SPS Estates Review

On 6 February 2002, even prior to the publication of the Estates Review, Scottish Ministers acknowledged to Parliament that Peterhead prison was ‘long past its sell by date’ and that all prisoners there still had to slop out (a matter on which they accepted that the Scottish Parliament had ‘made its views very clear’). They also acknowledged that expensive maintenance to the prison was becoming a major difficulty. As the Deputy Justice Minister put it:  “whatever else happens, Peterhead prison as we know it…will have to go. Restoring the prison is not practical.” (col 6127).

That clearly accorded with the SPS view as well; a view reached, it seems, well before 2002.  SPS had, by 2002, considered and ruled out the possibility of providing proper access to proper sanitation by integral sanitation, electronic unlocking, and open door/own keys policies.

This review was completed by SPS in December 2000 and submitted to the Scottish Executive.   It, however, then submitted the review for a further ‘independent audit of the costings by accountants PricewaterhouseCoopers’ to consider not only the ‘private build, private operate’ and the ‘public build, public operate’ but also the ‘private build, public operate option’:

The SPS Estates Review was finally published on 21 March 2002. In general it rather tamely acknowledged that slopping out was ‘unsatisfactory’ ‘unpleasant’ and ‘undesirable’, but nonetheless stressed that ‘SPS policy is to end it as soon as possible’.  As regards Peterhead the Review stated as follows:

“SPS has considered a number of refurbishment options… including the introduction of electronic locking with access to night sanitation comparable to that in use at HMP Glenochil.  If this were being done, EPIC [electric power in cell] would be provided at the same time.  However because of the construction of the accommodation buildings (some concrete walls are 45cm to 75cm thick) the prison is not amenable to adaptation or upgrading at a realistic cost.  Introducing any form of night sanitation would be a costly, time consuming and disruptive exercise, which would delay the final demise of these buildings for a disproportionately short period in relation to the expenditure.  The cells are also too small to take a toilet cubicle.  Refurbishment also creates a problem in terms of displacement of prisoners whilst the refurbishment is carried out, with consequent risks of discontinuity to the Peterhead regime.  Attempting a refurbishment would be to incur high expenditure and risk disruption for very short term benefit.” [para.157]

It was thus recognised that because the cells at Peterhead are too small to take a toilet cubicle, the only option for installation of integral sanitation would be to divide three cells into two, thereby providing sanitary annexes.  However the consequence of that would be to reduce the capacity of the prison by a third, and thus to very significantly raise the cost of each prisoner place.  In short, the capital and revenue costs made the installation of integral sanitation in the existing houseblocks at Peterhead unviable.  Accordingly the Review concluded:

“HM Peterhead has a long history and in recent years has delivered excellent work with sex offenders.  It is however not well located to carry this work on and the buildings are at the end of their useful life.  The prison should close and the work should be transferred to prison(s) elsewhere in central Scotland.” [para.168]

Or as the matter is put at Appendix B of the Review:

“All accommodation (296) not fit for purpose due to condition of buildings – no night sanitation (porta potties provided as temporary solution) or EPIC.  Due to be demolished and replaced by new houseblock or new prison.”  [page 58]

Accordingly the SPS Estates Review, nearly two and a half years in preparation (it having commenced in 1999), expressed a clear policy commitment to end slopping out as soon as possible across the whole Scottish prison estate and, at the same time, made clear that that policy commitment could not be achieved as regards Peterhead by physical adaptation or upgrading of the prison.  Put another way, the Review’s forceful and unequivocal conclusion was that the only way to provide proper access to proper sanitation for prisoners detained at Peterhead was to close it and to transfer them to other prisons.   In short, there was a clear recognition by SPS that slopping out would continue at Peterhead as long as it remained open.

Government Response to Estates Review

Initially, the Scottish Government fully and enthusiastically accepted the Estates Review recommendation as regards Peterhead, in particular, as being the only way to ending slopping out at this prison.   Addressing Parliament, on 21st March 2002, the Justice Minister stated (cols. 10509 – 10511) that he ‘defied anyone to say that the buildings at Peterhead are fit for a modern prison estate’.  He then continued, replying to Lord James Douglas Hamilton MSP:

“If we [accept the Review recommendations], slopping out can be ended in five to six years. If we choose any other option, that time could extend to 11 years. I am determined to end slopping out.  There is a contradiction in James Douglas-Hamilton’s question.  If we keep Peterhead, we will not end slopping out.  I have considered all the factors and I believe that what we are proposing today will end slopping out as early as is physically possible.”

Subsequent events have entirely confirmed the correctness of the Justice Minister’s statement.   Critically however, as at March 2002, it is clear that the Government correctly understood that, as far as Peterhead was concerned, ending slopping out was dependent on them making a decision (in 2002) to close the prison.  Or, as it was put in evidence before the Court: there was a ‘window of opportunity’ to close Peterhead within a 3 year timescale from 2002.

On 18 April 2002, Scottish Ministers published their consultation on the Estates Review. They stated that it was:

“… a key aim of the Scottish Executive to provide all prisoners with proper access to night sanitation and so bring to an end the unsatisfactory practice of slopping out.  The ability of the SPS to procure new prison accommodation is central to this aim because in older establishments, like … Peterhead, altering the existing accommodation would be expensive and extremely difficult.” [para.88]

Accordingly there was, in this document, a clear understanding by the Government that the ending of slopping out was dependent on physical improvements to the physical estate (by building 3 new prisons, new houseblocks at existing prisons, and refurbishment), but that such physical improvement was not feasible at Peterhead.  The Government also argued that sex offender programmes did not need to continue to be delivered at Peterhead, given that, for example, Glenochil also catered for long term sex offenders.   The consultation document accordingly supported the Estates Review recommendation that Peterhead should close, a process which was estimated would take a minimum of 3 years.

Also on 18 April 2002 the Government appointed Alex Spencer to undertake a review of the future management of sex offenders within Scottish prisons.  Mr Spencer had at one point been the manager of Peterhead and was instrumental in introducing the sex offender management courses to the prison.  He gathered a team of experts who produced a report dated 28 June 2002.  His starting point was the Estates Review recommendation that Peterhead should close.  However the remit was not whether to recommend this course of action, but to consider whether it was possible to move the sex offenders management course elsewhere (See p.4, para.1.3 of his report).  In his covering letter to Ministers he wrote:

“We are convinced that setting up an effective environment is a challenging task, yet it is one which has been achieved with success at Peterhead.  We are confident also, that it can be replicated elsewhere provided there is strong commitment and support for the project.  Indeed, creating an improved facility, compared with the physical conditions which currently pertain at Peterhead, will enhance the chances of the new centre for addressing the offending behaviours of sex offenders even higher standards.” (p.1)

In short, the expert view of those expressly commissioned by the Governement to address the issue was that, far from it being necessary to retain Peterhead in order to provide specialist sex offender programmes, closure of Peterhead and movement of these programmes to a new, fit for purpose, prison (such as recommended in the Estates Review) would enhance and improve this work.   And quite expressly stated by the Spencer report in this connection is the basic, foundational need to end slopping out:

“It was important that there was appropriate accommodation and facilities available for prisoners and for staff to undertake the specialised work, prisoners were entitled to decent conditions (such as not slopping out)…  Having accommodation fit for purpose was a universal need and not a programmes specific requirement.” (p.27)

“Conclusions…  Accommodation should be fit for purpose/habitation i.e. that prisoner accommodation will meet acceptable standards…” (p.45)

Thus the Report concluded that, with proper preparation and attention to a number of detailed requirements, improved programmes could be delivered in locations other than Peterhead and made recommendations as to how that could be achieved:

“… with planning and an organised approach to the arrangements required for selecting and training staff, and sequencing of interventions, it should be possible to transfer the delivery of such programmes to a new location without too much disruption.” (p.46)

Accordingly the Spencer report provided no support for the proposition that it was operationally necessary or appropriate to continue to provide sex offender programmes at Peterhead.  Quite the reverse.  Insofar as the report concluded that it was necessary that these programmes be provided in a physical prison environment which was fit for purpose, and did not have slopping out, this was quite inconsistent with Peterhead remaining open.

On 2 July 2002 the Scottish Parliament’s Justice 1 Committee’s report on the Estates Review Consultation was published.  The Committee stated that it:

“… agrees that it is not acceptable that both prisoners and staff have to endure the degrading experience of slopping out and that this should be addressed as a priority. [Justice 1 Committee Report on SPS Estates Review para.64]

The Scottish Prison Service (SPS) states that upgrading cells to include integral sanitation is usually linked to upgrading to meet two other basic operational and health issues: hot and cold water supply and electric power in cell. The Committee believes that prisoners should live in humane conditions and that all prisoners must have these facilities.” [Justice 1 Committee Report on SPS Estates Review para.65]

However, although clearly and forcefully accepting the policy goal of providing proper access to proper sanitation and ending slopping out, the Committee did not accept the proposal to close Peterhead.  In particular – notwithstanding the Spencer report – it considered that sex offender treatments should remain at Peterhead. It queried the SPS view that integral sanitation could not be installed.  And it noted a proposal suggested in oral evidence to the Committee by the HM Chief Inspector of Prisons for Scotland that increased staffing at Peterhead would enable night sanitation to be provided, and called for a risk assessment in that regard.

The proposal for Peterhead mentioned by the HM Chief Inspector of Prisons for Scotland to the Committee is also stated in his 2001/2002 Annual Report, dated 7th June 2002. As was stated in that Report:

“…the lack of access to night sanitation means that the prison is currently unfit for purpose; we entirely agree that reliance on porta potties is not acceptable for very much longer.  Whereas it has been suggested previously that the installation of electronic locking might be a possible solution, on further investigation, we assess that the accompanying expense of having to divide halls into discrete flats might be too expensive and time consuming.  Nevertheless, on this latest occasion a novel solution was suggested to us by staff.  This would involve a redeployment of officers so that prisoners would be able to gain access to lavatories through the provision of an increased complement at night.  Given the relatively compliant nature of this group of prisoners, who require less supervision in custody than many others, we support this as an entirely workable solution.  (It would appear, therefore that the threat of closure may have concentrated minds and helped create a solution to what was previously intractable situation).” [HMCIP Annual Report 2001/2002 p.30]

Accordingly it is apparent that the proposal for additional night staff was not that of the HM Chief Inspector of Prisons for Scotland but of SPS staff at Peterhead itself.  Further, that proposal had arisen from a recognition of the intractable problem threatening the closure of the prison, namely the impracticability of improving the physical structure of the buildings so as to provide proper access to night sanitation.  Contrary to the HM Chief Inspector of Prisons for Scotland’s suggestion, however, there was nothing ‘novel’ about the proposal.  It reflects the measures which Woolf and Tumin had recommended in 1991, and the CPT had recommended in 1991, 1996 and 2000.  However, what both of these sources had stressed, as noted above, was that deployment of additional staff should be seen as a short term or interim measure pending installation of integral sanitation, rather than a long term answer to a failure to provide it.  It was only ‘workable’ in that context, and not a basis for keeping open a prison which was physically not fit for purpose, and could not be made fit at a proportionate cost.

9. The decision not to end slopping out at Peterhead

On 5 September 2002 the Justice Minister announced to Parliament the critical decision for HMP Peterhead.  In a u-turn from their earlier position the Government decided that Peterhead would remain open.  That decision was made in particular having regard to the public campaign mounted by local residents in the Peterhead area, including the wives of prison officers employed there, supported by the then local MP (Mr Alex Salmond) and MSP.

The Government acknowledged that this campaign had been material to their change of mind.  As the Justice Minister put it:

“An important influence on our thinking has been the turnaround in the attitude of the local community—from initial, understandable, apprehension, to what is now committed support. I pay tribute to the dignified and effective campaign on behalf of Peterhead, in particular by the partners of the staff and by Aberdeenshire Council.” [Statement by Justice Minsiter to Scottish Parliament on 5 September 2002 , Col 13375]

Alex Salmond was said to have welcomed the Governement u-turn, while observing that it was a “total humiliation for the Scottish Prison Service.”

Put shortly, however, the political pressures arising from local community were allowed to overrule the clear operational imperative, fully understood by SPS and articulated in the Estates Review, to close the prison inter alia as the only way to properly secure the human rights of the prisoners detained there.

As the HM Chief Inspector of Prisons for Scotland later commented, however, being sex offenders these prisoners were ‘a group for whom the public and other prisoners had the least sympathy.’ [HM Chief Inspector of Prisons for Scotland 2007/2008 Annual Report at p.13]

By their decision the Scottish Ministers made a deliberate policy choice which they knew, or ought to have known, would have the result that proper access to proper sanitation would not be available to prisoners at Peterhead.  That policy choice was not made on the basis that it would be more expensive to close Peterhead than keep it open.  Nor was it made on grounds of any ‘operational necessity’ to continue to detain sex offenders at Peterhead:  even if there was merit in centralising sex offender work in a single prison (which may have been debatable, but was not recommended by SPS in the Estates Review), there was no operational reason (as Spencer had confirmed) why that work had to be located in the existing prison in Peterhead, as opposed to a new prison in the central belt.   And in any event, a decision to keep Peterhead open could not properly be justified by any supposed need to continue to detain and ‘treat’ sex offenders there, given that a precondition for any such treatment, wherever delivered, was a prison which was capable of affording minimum acceptable conditions of detention, including proper access to proper sanitation.  But even if there were good reasons – in the face of the evidence – for continuing to provide sex offender programmes in a single prison in Peterhead, this was not a justification for not closing the existing prison.  At best it was a justification for closing down the existing prison, and building a new one on the same site.

In summary, therefore, the decision not to close Peterhead was made on political grounds as a result of pressure from the local community, in the face of the clear and unequivocal recommendations of the Estates Review, and in the full understanding, as the Justice Minister had earlier put it, that ‘if we keep Peterhead, we will not end slopping out’.  Put another way, the Government’s decision of 5 September 2002 amounted to a positive, policy decision not to end slopping out at Peterhead within the timescales relevant to the petitioners.

10. The impossible brief

There is no doubt that following the 2002 Estates Review (and no doubt prompted by the decision in Napier v Scottish Ministers on 26 April 2004) considerable effort and resources were put into ending slopping out in Scotland, through replacement and renovation of the physical estate.  In particular two new prisons were built, and new houseblocks built at existing prisons.  With the exception of Peterhead and a single hall at Polmont (79 places) slopping out was ended in Scotland in December 2005 (and was ended at Polmont in January 2007).

But the fact that effort and resources were put into improvement and upgrading of much of the physical estate after 2002 cannot justify the failure – and continuing failure – to provide proper access to proper sanitation for prisoners at Peterhead.  Because, by their decision of September 2002, the Scottish Ministers handed SPS an impossible brief:  to end slopping out in all Scottish prisons, while keeping Peterhead open.  The brief was impossible because these two objectives were  – as the Government knew – incompatible.  Therefore from September 2002 on, the issue as regards Peterhead was not the ending of the denial of proper access to proper sanitation and slopping out, but whether anything could be done which might reduce the adverse effects of it.

SPS knew that the brief was impossible.  And the Government knew it too.  It is perhaps telling that from September 2002 they began to decline to give any firm date for ending slopping out in Scotland generally.  Instead, they repeatedly stated that they ‘hoped to do so about a year after the completion of the second of the two new prisons announced in the Estates Review’

7 October 2002 S1W-29749

Roseanna Cunningham (Perth) (SNP): To ask the Scottish Executive whether it envisages providing in-cell sanitation in all prison cells by 2005-06.

Mr Jim Wallace: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service to respond. His response is as follows:

The timescale for ending slopping out depends on a number of developments, not all of which have firm timescales. These include implementation of the plans for Barlinnie, Edinburgh, Glenochil, Perth and Polmont announced by the Deputy First Minister on 5 September 2002, the opening of the two new prisons also announced on 5 September, and the closing of existing substandard accommodation as new or refurbished accommodation becomes available. The Deputy First Minister indicated in his statement on 5 September that he hoped that, on current plans and population projections, slopping out would end about a year after completion of the second new prison.

3 November 2003 S2W-3188 S2W-3192

Tommy Sheridan (Glasgow) (SSP): To ask the Scottish Executive, further to the answer to question S2W-2594 by Cathy Jamieson on 26 September 2003, whether the practice of “slopping out” in prisons is acceptable; when the practice will be brought to an end, and what the reasons are for its position on the matter.

Pauline McNeill (Glasgow Kelvin) (Lab): To ask the Scottish Executive when “slopping out” at HM Prison Barlinnie will end.

Cathy Jamieson: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service to respond. His response is as follows:

The Scottish Prison Service accepts that “slopping out” is an undesirable practice and is committed to ending it as soon as possible. However, it will be some time before slopping out can be ended completely. The most realistic time that slopping out can be ended is about a year after the completion of the second of the two new prisons that were announced by the Executive on 5 September 2002 as part of its decisions on the prison estates review. A firm date cannot be given because a number of variable factors are involved; including future trends in prisoner numbers, issues affecting the timescale for completion of the new prisons such as the obtaining of planning permission, and the need to make arrangements for decanting and moving prisoners to allow existing accommodation to be improved.

15 January 2004 S2W-5213

Pauline McNeill (Glasgow Kelvin) (Lab): To ask the Scottish Executive, further to the answer to question S2W-3188 by Cathy Jamieson on 3 November 2003, when it will end slopping out in prisons.

Cathy Jamieson: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service to respond. His response is as follows:

As I said in November we anticipate that slopping out can be ended about a year after the completion of the second of the two new prisons announced by the Executive as part of its decisions on the prison estates review.

29 April 2004

Margaret Smith (Edinburgh West) (LD): Does the First Minister agree that the prison building and refurbishment programme has to be implemented as speedily as possible? Can he indicate when there is likely to be an end to slopping out in Scotland’s prisons?

The First Minister: As we have made clear this week, the target date for ending slopping out in Scotland’s prisons will follow the creation of those new prisons, which are fundamental to establishing the new practice. Among other things, the establishment of the new prisons will depend on planning permission for the two sites that have been provisionally identified. In both cases, planning decisions remain outstanding.

18 June 2004 (S2W-7849)

Colin Fox (Lothians) (SSP): To ask the Scottish Executive when it now estimates that the practice of slopping out will be eradicated across the entire prison estate.

Holding answer issued: 11 May 2004

Cathy Jamieson: I have asked Tony Cameron, Chief Executive of the Scottish Prison Service to respond. His response is as follows:

I refer the member to the answer given to question S2W-3188 on 3 November 2003. All answers to written parliamentary questions are available on the Parliament’s website, the search facility for which can be found at Questions & Answers Search.

6 October 2004 the First Minister’s spokesman held a media briefing, the record of which states as follows:

Asked if it was still a target to end slopping out by 2008, the FMOS said that the Executive had acknowledged that we can’t end slopping out universally until we build two new prisons. However, FMOS emphasised that a lot of good work has been done so far, pointing to the fact that 86% of prisoners have access to night sanitation. She also explained that the refurbishment of A-Hall at Barlinnie had ended slopping out at that prison in July, and the completion of the new house block in Saughton Prison next summer will end slopping out at that prison. FMOS reiterated that the Executive are committed to ending slopping out, but are restricted by the fact that we can’t end slopping out completely until the two new prisons are built.

However there was no mention of how this was to be achieved while Peterhead remained open.   Instead, for example on 3 June 2003, the Justice Minister stated that she would “be examining, with SPS, a range of options for ending slopping out for Peterhead prisoners”.

But, more than two years later, the SPS 2005 Annual Report candidly stated that:

“Except for HMP Peterhead, where Ministers are considering options, it is expected that slopping out will be completely eradicated one year after completion of both the two new prisons that the Scottish Prison Service plans to procure (subject to prisoner numbers).” (p.81, para.9)

This recognises the intractable consequence of the Government’s decision to keep Peterhead open and the fact that, apart from ‘considering options’, they did nothing to end denial of proper access to proper sanitation at Peterhead in the three years after the September 2002 decision.   Indeed they did nothing to end it until 24 August 2007, when ‘after years of indecision’ a decision was finally made to close Peterhead and subsequently to build a new prison on the same site.  Only now are the consequences of that decision beginning to bear fruit, with a number of prisoners recently being transferred from Peterhead to other prisons.

But, Peterhead will not close until at least 2014.

Accordingly, slopping out may well continue until then, some 23 years after the Woolf and Tumin Report.

11. The attempts at mitigation 2002 – 2010

There is no question that the SPS have taken a number of steps to seek to mitigate the effects of the continuing denial of proper access to proper sanitation at Peterhead.  But there is equally no question (a) that such measures as were taken were not taken promptly after September 2002; (b) that the one measure which might have made the most difference – the deployment of additional night staff – was not taken at all; and (c) that the central, degrading, elements of denying proper access to proper sanitation remained.    And in assessing the Government’s efforts at mitigation it is by their actions that they must be judged, not by the extent to which they expended effort in repeatedly ‘considering options’ in consultations, reports, assessments and the like.

12. The 2005 CPT Report to United Kingdom

On 4 March 2005, while decisions to continue to do nothing to end or reduce slopping out at Peterhead were being made, the CPT published its report on its 2003 visit to Scotland.  It noted that:

“At the time of the 1994 visit, the target date for eradicating slopping out was 1999…The CPT has now been informed that it is intended that slopping out will be eradicated by 2007 – 2008.  The continuing delay in meeting this basic requirement is highly unsatisfactory.  The CPT calls upon the authorities to redouble their efforts with a view to eradicating slopping out within the next twio years (i.e. by the end of 2005)”  [paragraph 66 of the 2005 CPT Report.]

In its response published on the same date, the United Kingdom Government said that

“The Scottish Executive regrets to say that it is not possible to eradicate slopping-out within 2 years. New prisons are being added to the estate and existing accommodation upgraded to provide sufficient operational needs and end slopping out. Neither the SPS nor Ministers have ever said that slopping out would be eradicated by 2007-2008. No such fixed deadline has been set. Rather, it is currently anticipated that slopping out will end around one year after the two new prisons open. The timing of that will be determined by the need to secure planning permission for the new prisons.” (4th March 2005, para.164)

This statement appears to be economical with the truth, as well as an exercise in semantics.  Target dates of 1997/8 (at Peterhead), 1999, 2004 – 2005 and 2007-2008 had all, at some point, been stated by the Government or their statutory predecessors.  But more particularly, in this latest response, the CPT was not advised about the position at Peterhead and the fact that the Government had decided not to shut this prison in the knowledge that slopping out there would accordingly not be ended.  As already noted, that remained the position as at 2005, and accordingly the Government’s stock reference to ‘ending slopping out a year after the two new prisons open’ misleadingly omits the necessary qualification ‘except at Peterhead.’ See SPS Annual Report 2005:

Except for HMP Peterhead, where Ministers are considering options, it is expected that slopping out will be completely eradicated one year after completion of both the two new prisons that the Scottish Prison Service plans to procure (subject to prisoner numbers).” (p.81, para.9)

It is hard to escape the conclusion that the CPT was  – yet again – simply not told the truth.

13.  The 2005 consultation on prison services in the north east of Scotland

It seems apparent that even by August 2004, in the light of the decision in Napier v Scottish Ministers, and SPS decisions not to sanction the use of additional night staff, the Scottish Government sought again to canvas the question of closing Peterhead. However, it was not until 19 July 2005 (Scottish Parliament Written Answer S2W -1707, 19 July 2005) that the Justice Minister asked SPS to update its estates strategy in relation to ‘prison services in the north east of Scotland’ in the light of Napier and report. And it was not until September 2005 that SPS published its consultation paper on this topic.

The 2005 consultation traversed familiar ground.  It recalled the 2002 Estates Review assessment that Peterhead was not fit for purpose and should have been closed at that time:

Scottish Ministers consulted in March 2002 on the Scottish Prison Service’s proposed Estates Strategy, designed to create a prison estate fit for the 21st century. This concluded that Peterhead was no longer fit for purpose and that its capacity and role should be replaced by a purpose-built prison in the Central Belt. Following consultation, this proposal was withdrawn. Ministers announced in September 2002 that HMP Peterhead would remain open for the foreseeable future. (paragraph 5).

It also noted that, from 2007, Peterhead would be the only prison left in Scotland with slopping out:

By the end of 2006, SPS expects to have ended slopping out at HM YOI Polmont, meaning that HMP Peterhead would at that point be the only remaining prison without access to night sanitation. In addition to considering the long-term options described in this paper, SPS continues to monitor actual and projected prisoner numbers and the progress of legal challenges to detention and conditions in existing prisons, including at HMP Peterhead. (paragraph 5).

Thereafter 6 options were put forward, including ‘Option 1:  no capital investment, relying on operational changes to ensure compliance with ECHR’; ‘Option 2:  refurbish the accommodation blocks at HMP Peterhead.’; ‘Option 3:  quick build accommodation’; and Options 4 – 6:  replacing Peterhead and possibly Aberdeen with a new prison at one of various locations, including the existing Peterhead site.

SPS proposed that Option 1 should be ruled out, recalling its earlier decisions that the deployment of additional staff could not safely and sufficiently speedily provide adequate access to toilets (paragraph 10).  Option 2 was also ruled out, repeating the view expressed in the 2002 Estates Review that the age, size and construction of the cells at Peterhead meant that they could not be refurbished at an economically viable cost.  Option 3 was also ruled out as not economically practical.  Accordingly, and entirely unsurprisingly, SPS once again supported Options 4 – 6, all involving closure of Peterhead, with the only question being where to site its replacement.

The consultation period closed in November 2005, and it appears that the resulting report was published in early 2006. As regards Option 1, the Report notes as follows:

“There was no support for this option.  One member of staff at HMP Peterhead suggested that no other group of prisoner would tolerate the present conditions at the prison, observing that sex offenders did so due to the safety and security of being held away from the mainstream population. Another prison officer considered that the majority of prisoners were most concerned with the safety of both themselves and their visitors, and did not tend to complain about the conditions at the prison…  The collective response from Peterhead staff, the Scottish Prison Service Trade Union Side and the STOP: The Closure of Peterhead Prison Group commented that it was difficult to see what operational changes could be made to end slopping out without major capital investment.”

As regards Option 2, the Report notes:

“There was little support for this option.  The HMP Visiting Committee commented that it would be expensive and would probably reduce the number of cells at Peterhead, perhaps to 200 single cells… [which would] make the prison unviable.  The STOP:  The Closure of Peterhead Prison Group indicated that they no longer considered this option desirable.”

There being no support for Option 3, the Report noted that the majority of respondents favoured Option 4 – closing Peterhead and building a new prison on the existing Peterhead site, which failing, elsewhere in Aberdeenshire.

In short, the Report of the 2005 Consultation merely repeated conclusions which had been known to the Government no later than 2002, and in all likelihood, well before that date: the only way to end slopping out at Peterhead was to close the prison.   However, at this time, no action to this effect was taken by the Government in the light of this Report.

One of the responses to the Consultation was the local MP, Alex Salmond who submitted a paper entitled: “HMP Peterhead: The Jewel in the Crown”

14. The change of government and change of policy

Following the Scottish Parliamentary elections on 3 May 2007 there was a change of administration.  The then MP for the Westminster constituency which includes Peterhead, Mr Alex Salmond, became First Minister.  In the 2005 Consultation Mr Salmond had supported Option 4, that is, that a new prison should be built on the same site.

On 28 August 2007 the Scottish Government issued a news release statement setting out plans for Scotland’s prisons which included:

“A financial package of £120m capital a year for the Scottish Prison Service to modernise facilities and finally end the scandal of slopping out”.

Meaning at HMP Peterhead, this being the only Scottish prison that was by this date – scandalously – still slopping out.

The Justice Minister was quoted as saying that

“After years of indecision we are today announcing positive steps to replace Victorian facilities at Aberdeen and Peterhead with a brand new state of the art prison in the area.”

‘Years of indecision’ correctly describes the failures of the Government and their predecessors to end slopping out at Peterhead in the period since 2002 – if not since 1994.   The background to the Justice Minister’s statement is in the following terms

“Funding of £120m capital per year for the provision of a new fit for purpose prison estate has been agreed by Cabinet. This will not only allow the construction of a new prison but significant investment in the current estate to replace our ageing prisons.  The SPS consulted on the future of prison services in the Northeast following the announcement by the then Justice Minister in September 2002, that HMP Peterhead would remain open “for the foreseeable future”. The SPS consulted again on this in late 2005 and published the responses on its website in early 2006. The consultation exercise sought views from a wide range of stakeholders. These views have informed today’s decision.”

Thus the new government was finally prepared to address the intractable problem of slopping out in Peterhead which had arisen directly from the 2002 decision, and to act on the fact, long since known and confirmed in the 2005 consultation, that it could only be ended by closing the prison.

The decision to close Peterhead plainly should and could have been taken in 2002, as the Government themselves now appear to recognise.   On 4 December 2007 the Justice Minister told the Justice Committee of the Scottish Parliament that:

The consequences of, for example, slopping out are substantial. That is a problem that we inherited… We would have been able to provide the necessary resources to ensure that the situation in the prison estate was addressed, if we could have used the money that we have had to budget for the consequences of slopping out, which is a result of the failure by a previous Government down south to provide adequate protection in the Scotland Act 1998, and of the previous Executive’s failure to take action expeditiously when money became available.” (Col 432)

Again this confirms what is apparent from the history set out above.  The failure to end slopping out by closing Peterhead prison was not about a lack of resources to achieve this.  It was the inevitable consequence of an ill judged decision taken by the Government in September 2002, followed by ‘years of indecision’ by them.

On 4 June 2008 the Scottish Government announced that the new prison to replace Peterhead, the building of which they had announced in August 2007, would be built on the site of the existing prison.   The Government made clear that the new prison was to be a community prison, and not simply for sex offenders, again confirming what had been known in 2002:  that it was not necessary to retain Peterhead in order to acheive this.

As was commented in a Report prepared for the Court:

“…it will be ironic that, having suffered the privations of living the unreconstructed Peterhead Prison for 20 years with no proper access to sanitation, on the grounds that the courses they needed to control their deviant behaviour could only be provided in Peterhead, those convicted of sexual offences will not be held there once the new prison has been completed…

If, when the new prison at Peterhead is completed, the prisoners who currently are there are to be relocated so that other prisoners will enjoy the facilities of the new prison, this will give the lie to the argument that only in Peterhead can these prisoners be given the courses which they need in the interests of public safety…”

Thus this factor further undermines any attempt to seek to justify the decision to keep Peterhead open in 2002 by reference to any supposed need to treat sex offenders there and nowhere else.

15. HM Chief Inspector of Prisons for Scotland Follow Up Report 2008

Her Majesty’s Chief Inspector of Prison for Scotland the 2008 Inspection Report on Peterhead, at paragraphs 2.3 & 2.4:

….Previous reports have commented on the damage done to HMP Peterhead by continuing uncertainty. One aspect of that damage has been the lack of investment over the last five years at least. Now that a new prison has been announced, it is even less likely that more money will be spent on the existing building: yet its condition continues to deteriorate and prisoners continue to live in it.

2.4 The continuing use of chemical toilets is the most obvious sign of lack of investment in the prison building. Peterhead is the only prison in the United Kingdom where prisoners have no access to toilets when locked in their cells. Some steps have been taken to try to alleviate the impact of slopping out, but its continuation at Peterhead remains “the worst single feature of prisons in Scotland”. It is quite lamentable that the words written in the inspection report of 2006 can be written without alteration today. Many reports welcome the improvement of living conditions in prison after prison: but certainly there is no such improvement in Peterhead.

16. HM Chief Inspector of Prisons for Scotland Report 2010

Her Majesty’s Chief Inspector of Prisons for Scotland 2010 Inspection Report on Peterhead (dated 23 September 2010, published 16 November 2010, relative to inspection 14 – 20 June 2010):

‘1.7 The environmental impact of this ‘slopping out’ system on prisoners and staff alike is extremely unpleasant. The process of emptying the chemical toilets is a degrading activity for anyone to observe, far less participate in… Whilst the Governor and his staff are to be congratulated for the considerable efforts they are making to try and address the situation, I still found this ‘improved process’ to be degrading and falling short of satisfactory hygiene standards…

2.7 … Slopping out is degrading for all those concerned…’

CONCLUSION

In the light of the above, and to paraphrase Lord Bonomy in Napier v Scottish Minsters at paragraphs 89 – 91, it is plain that the Government took a deliberate decision not to address the denial of proper access to proper sanitation at Peterhead in 2002, when they had both the resources and the capacity to do so.  Even by that date they (and their predecessors) had delayed for more than 5 years in ending slopping out at Peterhead. But even standing that earlier delay, had they made the decision to close Peterhead in 2002, the petitioners would not have been detained there.

However by deciding to keep Peterhead open in 2002 the Government also decided that denial of proper access to proper sanitation and slopping out would continue for prisoners at Peterhead in the period  between 2005 and 2010.  Indeed they knew that this would be the consequence of such a decision.  And having made the decision, they then failed, for the next five years, to reverse it and close Peterhead, notwithstanding the clear and repeated evidence that without doing so slopping out could not be ended.  They then assigned the petitioners in this case to this prison when they were committed to custody in their hands between 2005 and 2008.

It follows that the detention of the petitioners in the conditions which prevailed at Peterhead between 2005 and 2010 were positive decisions, deliberately made.  That is not to say that the Government selected the petitioners, or indeed sex offenders in general, for particularly adverse treatment.  They made policy choices which established that the conditions for sex offender prisoners in Peterhead at the relevant times were ones in which they were denied proper access to proper sanitation and required to slop out.  And they then elected to detain and continue to detain the petitioners there.

It follows that the obvious infringement of Article 8(1) of the petitioners’ Convention rights cannot be justified and thus excused in terms of Article 8(2).  While the petitioners were undoubtedly held where they were ‘in accordance with the law’, to confine them in such conditions was not ‘necessary in a democratic society’ for any of the purposes set out in Article 8(2), including ensuring public safety or preventing disorder or crime.  To do so was not rationally connected to or adequately corresponding to any pressing social need, nor proportionate to such a need.  It did not arise from the necessary and inevitable consequences of imprisonment nor from any adequate link between the restriction and the circumstances of the prisoners in question.   Rather, as Lord Woolf and Judge Tumin recognized in their 1991 Report, denying the petitioners proper access to proper sanitation undermined the justice of the order of the court which committed them to prison in the first place [See paragraph 11.108,]

The Government have claimed the ending of slopping out inter alia at Peterhead as a major policy objective since no later than 1996.  However they failed to achieve that objective by October 2005, and continue to fail to do so.  The above examination of the history of failure to end slopping out at Peterhead since 1991 shows not only an unacceptable delay, but a culpable delay.  They had the opportunity to end slopping out at Peterhead, but chose not to do so.  By October 2005, at the latest, therefore, the continued denial of prisoners at Peterhead to proper access to proper sanitation and to slopping out failed to strike a fair balance between the prisoners’ rights to respect for private life, and any conflicting demands of the general community.   Indeed there was no such conflict:  the Government, Parliament and all informed commentators, have seen the provision of proper sanitation to prisoners as a policy objective, and thus presumably in the interest of the general community, since no later than 2002.

In all these circumstances, the systemic denial to the petitioners of proper access to proper sanitation throughout the relevant periods of their detention at Peterhead amounted to an interference with their rights to respect for their private lives under Article 8.1 which cannot be justified by reference to Article 8.2.  There have accordingly been violations of Article 8.

Comments are closed.