Slopping Out: Time-Bar

Docherty, Philbin & Logan v Scottish Ministers [2011] CSIH 58

These cases were selected – by agreement between the parties – as ‘test’ or ‘illustrative’ of the point in issue: whether a five year time-bar operates to prescribe (extinguish) damages claims by former prisoners subjected to inhuman or degrading treatment in Scotland’s jail’s when required to share cramped cells and slop out.

At Glasgow Sheriff Court the Scottish Ministers were successful in having struck out of each of the prisoners’ cases their claims for damages on the basis that they had come to court too late i.e. after a period of five years.  The Sheriff ruled that after five years their monetary claims had prescribed and could not therefore proceed

On the prisoners’ appeal the Court of Session has reinstated their claims for damages allowing the whole action to proceed at Glasgow Sheriff Court.

There have been many cases raised and sifted (frozen or paused) to await the outcome of the decision.  Those cases can now proceed, despite the delay in being brought to court, because as a matter of law – so the Inner House has ruled – the claims are still live and are capable of adjudication.

The solicitor acting for each appellant, Tony Kelly said:

“Many hundreds of clients were eagerly awaiting the outcome of the Court’s deliberations today.  The court has ruled that the Scottish Minsters challenge to the claims for damages was unsound and that they can now proceed.  It is astonishing that this matter continues to be litigated when the conditions complained of have, in many cases, have been improved.  The importance of today’s ruling is in paving the way for each pursuer to seek vindication for the breach of his fundamental rights. The Government has breached not some trifling regulation but a fundamental Article of the Convention – not to treat their citizens in an inhuman or degrading fashion. That is something that ought to be marked by the Court – and ought not simply to be struck out as something not worthy of the Court’s time.  The Court’s ruling is an important buttress to the remedies available to all citizens of Scotland under the Scotland Act and through that the European Convention on Human Rights”

Article 3 of the Convention has been recognised as enshrining a fundamental democratic value. In its 19th General Report on the CPT’s Activities (2008-2009) the European Committee for the Prevention of Torture said this of Article 3:

“15. The absolute prohibition of torture and inhuman or degrading treatment or punishment forms part of the bedrock of the societies that make up Europe. To challenge that prohibition is to challenge the very nature of those societies. The day will probably never come when torture and other forms of severe ill-treatment can be said to have been totally eradicated in the European continent; however, they can certainly be combated successfully and reduced to a marginal phenomenon. To achieve that, all relevant actors – national or international, governmental as well as non-governmental, judicial and supervisory – must fulfill their responsibilities.”

In Mr. Napier’s case the Court held that Article 3 of the European Convention on Human Rights had been breached when a prisoner had been detained in a shared cell for a lengthy period each and was required to slop out.

The Government accepted that Article 3 had been breached and agreed to settle cases brought to court within one year of the complaint.  Subsequently they argued that a one year time bar could be implied from the Human Rights Act 1998.  That argument was unsuccessful in the House of Lords (Somerville v Scottish Ministers) and the Government settled many more cases.

In 2009, the Government amended the Scotland Act 1998 to include a one year time limit (extendable in limited circumstances) – the Convention Rights (Amendment)(Scotland) Act 2009.

They then argued that the cases brought before that change in the law were subject to a five-year time limit.  That argument was unsuccessful.

On 12th May 2011, in the petitions for judicial review by Greens, Stanger & Wilson Lady Dorrian held that the conditions of detention in HMP Peterhead breached Article 8 where prisoner required to use a porta-pottie and queue to slop out into a public sluice.

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