Scottish Court of Session Decisions

[1] This is a petition for judicial review in which the petitioner, who is a remand prisoner in HM Prison, Barlinnie, Glasgow, seeks to challenge the conditions in which he is detained there, contending that they are in contravention of his rights under Article 3 of the European Convention on Human Rights ("the Convention").

[2] The petition came before me for a first order and for an interim order in terms of statement 3(c) of the petition. The respondents, the Scottish Ministers, were represented by counsel at the hearing of the motion, their caveat having been honoured.

[3] The remedies which the petitioner seeks include:

1. declarator that the conditions of his detention are contrary to Article 3 of the Convention, being conditions which cause him to be subjected to inhuman or degrading treatment;
2. declarator that the failures of the Governor of the prison and of the Scottish Ministers to secure that his conditions of detention are not contrary to Article 3 are acts or failures to act incompatible with his rights under that Article, and are accordingly unlawful by virtue of section 6(1) of the Human Rights Act 1998 et separatim (as regards the Scottish Ministers) section 57(2) of the Scotland Act 1998;
3. an order on the Scottish Ministers to secure his transfer to conditions of detention compliant with Article 3, whether within the prison or in any other prison; and for such an order ad interim; and
4. damages.

[4] The petitioner is 21 years of age. He is detained in HM Prison, Barlinnie, on two warrants, one granted in respect of his failure to appear in the High Court of Justiciary in respect of an indictment charging him with assault, robbery and abduction, and the other granted on petition in Airdrie Sheriff Court in relation to a charge of attempt to pervert the course of justice. He has been detained in C Hall of Barlinnie Prison, which is the part of the prison in which remand prisoners are detained, since 18 May 2001. He continues to be so detained despite a letter sent by his solicitors to the Governor alleging that the conditions of his detention are inhuman and degrading, and thus contrary to Article 3 of the Convention, and requesting his transfer to convention-compliant conditions of detention.

[5] The petition narrates that the petitioner has sought, but been refused, bail. Appeals were heard by the High Court of Justiciary and refused. Devolution issue minutes were lodged, debated before Lord Coulsfield on 22 June 2001, and refused. Notwithstanding the fact that the petitioner's detention arises out of criminal proceedings, it was submitted on his behalf that the conditions in which he was detained were a matter for the Scottish Ministers (Monterroso v HM Advocate 2000 SCCR 974 at paragraph (22) ), and the lawfulness of those conditions was properly a matter for this court rather than for the High Court of Justiciary. Mr Summers for the respondents did not dispute the competency of the present petition.

[6] The grounds on which the petitioner contends that the conditions of his detention contravene Article 3 are set out in Statement 7 of the petition, and in the report by Professor Thomas A. Markus (No. 6/7 of process) which is incorporated therein. The points made may be summarised as being (i) that the cell in which the petitioner is detained is grossly inadequate in living space, lighting and ventilation, particularly since he requires to share the cell with another prisoner; (ii) that the sanitary arrangements, which involve the process known as "slopping out", i.e. urination and defecation in vessels which are kept in the cell and emptied two or three times a day, are grossly inadequate; and (iii) that the extent to which he is confined in his cell is excessive, and the periods of exercise and recreation outside the cell are inadequate.

[7] The petition also refers to the petitioner's medical condition, and incorporates a report by Dr Micheal O'Keefe (No. 6/6 of process). The petitioner has an acute exacerbation of atopic eczema affecting primarily his face. The condition is not severe enough, in Dr O'Keefe's opinion, to require emergency admission to hospital, but does require treatment. Dr O'Keefe's report contains the following paragraphs:

[8] The petition also contains references to provisions of the Prisons (Scotland) Act 1989 and the Prisons and Young Offenders Institutions (Scotland) Regulations 1994, but no reference was made to those matters in the course of argument.

[9] Mr Collins, for the petitioner, submitted that it had been known for a number of years that the conditions of detention of remand prisoners in C Hall of Barlinnie Prison were unsatisfactory. He referred first to the Report to the United Kingdom Government on a visit carried out by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment ("CPT") in May 1994 (No. 6/9 of process). Barlinnie Prison was the subject of paragraphs 341 et seq., and C Hall was specifically dealt with in paragraphs 343 et seq. Paragraph 343 begins:

Paragraph 349 records that CPT's delegation "was informed by the Scottish Prison Service that it should be possible to introduce internal sanitation in all prison cells by 1999", and contains the recommendation that:

Paragraph 351 contained a further recommendation about significant improvement of the regime activities offered to remand prisoners at Barlinnie, with an objective of eight hours or more spent in purposeful activity outside cells. Mr Collins also referred to a report by HM Inspector of Prisons entitled "Punishment First Verdict Later: A Review of Conditions for Remand Prisoners in Scotland at the End of the 20^th Century (No. 6/10 of process). Reference was made in particular to paragraphs 3.4 to 3.11. In paragraph 3.17 it was noted that the practice of slopping out was expected to continue for another five years. In paragraph 3.34 the comment was made that:

Mr Collins also drew attention to the Revised European Version of the Standard Minimum Rules for the Treatment of Prisoners (No. 6/11 of process). Paragraph 13(1) desiderates that prisoners should normally be lodged during the night in individual cells. Paragraph 16 states:

Finally, Mr Collins referred to Peers v Greece (European Court of Human Rights, Judgment 19 April 2001, Application No. 28524/95), in which conditions of detention were held to contravene Article 3 (see in particular paragraph 75).

[10] Mr Collins submitted that in the circumstances averred the petitioner had made out a prima facie case that the conditions of his detention in C Hall were in contravention of his rights under Article 3 of the Convention. Whether an interim order in terms of statement 3(c) of the petition should be pronounced therefore depended on where the balance of convenience lay.

[11] Mr Summers on behalf of the respondents accepted that there was an issue to try in relation to the petitioner's averments in support of the contention that the conditions in which he was detained amounted to an infringement of his rights under Article 3. He submitted that a full hearing would be required before the court would be in a position to determine whether the petitioner's contention on that point was well founded. He made it clear that, although the respondents accepted that the petitioner had made a prima facie case, they did not accept that there actually was a contravention of the petitioner's Article 3 rights. There were aspects of the petitioner's pleadings that were not disputed. There was sharing of cells in C Hall - there were 279 prisoners and 171 cells. The purely factual material in Professor Markus's report, as to cell size, lighting and ventilation, was not disputed. It was accepted in particular that slopping out "has no place in a modern prison service", and maintained that the Scottish Prison Service was actively seeking to resolve that matter. It was not, however, conceded that the practice of slopping out per se amounted to a contravention of Article 3 rights.

[12] By agreement between counsel I heard Mr Summers first on the question of the balance of convenience. He turned his attention in the first place to whether the petitioner had made averments that placed him in a position distinguishable from that of other remand prisoners in C Hall. He recognised that the averments about the petitioner's medical condition might do so, but submitted that they in fact did not. He produced a report (part of No. 7/1 of process) by Dr Mitchell, Medical Adviser to the Scottish Prison Service. As Dr O'Keefe did, Dr Mitchell recognised the part stress might play in causing atopic eczema to flare up. He expressed the opinion, however, that the petitioner's condition was being appropriately managed (from the medical point of view) in Barlinnie, and that there was no medical reason to consider relocating him. In these circumstances, Mr Summers submitted, the petitioner's medical condition did not place him in a different category from other remand prisoners.

[13] Mr Summers therefore turned to what was the main substance of his submissions. If the petitioner's position was indistinguishable from that of other remand prisoners, in the event of an interim order being pronounced requiring his transfer to another institution or other regime of detention, the other prisoners in C Hall would be entitled to be treated in the same way. In examining the balance of convenience, it was, he submitted, appropriate to look at the problem at large, rather than to confine attention to the position of the petitioner. The court should also have regard to the fact that the respondents were aware of their Convention obligations, had indeed conducted an audit in that connection, and were in the process of making improvements. At present, of the six halls in Barlinnie, D Hall and Letham Hall (23% of the total accommodation) provided access to night sanitation. A contract had been awarded to upgrade B Hall to provide integral sanitation, and the completion date was March 2002. Once that work was complete, 43% of prisoners would have access to night sanitation in one form or another. It was not, however, practicable to transfer all the remand prisoners in C Hall to accommodation that had access to night sanitation. The balance of convenience was against making an interim order in favour of the petitioner that could not be implemented in respect of the other prisoners who were in the same position as the petitioner.

[14] Mr Collins submitted that each case alleging contravention of an individual's rights under Article 3 required to be considered on its own merits. If the position of other remand prisoners were not taken into account, it was clear that the balance of convenience favoured the granting of the interim order sought by the petitioner. It was not suggested that it was in any way impracticable for the respondents to implement such an order in respect of the petitioner. The considerations that there were other remand prisoners who might be in as strong a position as the petitioner to seek a similar order, and that it would be difficult or impracticable for the respondents to relocate all of those other remand prisoners, did not constitute a good reason for refusing the petitioner an interim order to which he was prima facie entitled and which would, by itself, involve no impracticability or inconvenience for the respondents.

[15] In my opinion, the balance of convenience favours the granting of the interim order sought. Mr Collins did not invite me to treat the strength of the prima facie case as a factor affecting the balance of convenience (c.f. Toynar Ltd v Whitbread & Co plc 1988 SLT 433; N. W. L. Ltd v Woods [1979] 1 WLR 1294 per Lord Fraser of Tullybelton at 1310). It is, however, in my view right to approach the question of balance of convenience on the basis that it is a matter of concession by the respondents that the petitioner has made out a prima facie case of infringement of his Article 3 rights. It is also clear that the problem is a long-standing one, and that the complete solution is as far away now (five years) as it was in 1994. I regard it as appropriate to give some weight to the evidence about the petitioner's medical condition. Accepting Dr Mitchell's view that he can be adequately treated in prison, it nevertheless seems to me to be common ground between the doctors that the stress of the conditions in which he is detained may well play a causative role in the exacerbation of the condition. Primarily, however, I regard the fact that the respondents do not seek to argue that it would be impracticable to implement an interim order in respect of the petitioner as tilting the balance of convenience in favour of making such an order. If it were right to take into account the impracticability of implementing a similar order in respect of all of the prisoners in C Hall in determining where the balance of convenience lies in the petitioner's case, I accept that the balance would be tilted in the opposite direction. It seems to me, however, that the petitioner is entitled to have his case determined according to its own merits. The broader consequences of treating all the prisoners in C Hall in the same way do not, in my opinion, alter the fact that the balance of convenience in the petitioner's case favours the granting of an interim order.

[16] Mr Summers submitted that an order ought not to be pronounced in the inspecific terms sought. An order simply to transfer the petitioner to conditions of detention that are compliant with Article 3, pronounced at a stage when the court has made no determination of whether and, if so, in what respects the conditions in C Hall are not so compliant, would leave the respondents in the impossible position of not knowing what changes of conditions were required in order to comply with the order. In making that submission, Mr Summers referred to Walker v Strathclyde Regional Council 1986 SLT 523, in which Lord Davidson, invited to make an order on an education authority to perform its duty under section 1 of the Education (Scotland) Act 1980, considered, but did not accept, a submission that such an order would be too inspecific. His Lordship said (at 527I-K):

Mr Collins invited me to follow Lord Davidson's approach, and to pronounce an order in the terms set out in statement 3(c) of the petition. Alternatively, he invited me to pronounce an order which was specific as to the extent of the accommodation to be provided for the petitioner's individual use, specified the minimum sanitary arrangements, and provided for a specified minimum period to be devoted to purposeful activity outside the cell. I take the view that it would be quite impracticable for the court to follow the latter course at this stage of the case, when no determination has been made as to whether and, if so, in what respects the conditions in which the petitioner is detained infringe his Article 3 rights. The question which I require to address is therefore whether I can make the relatively inspecific order sought, or must because of that lack of specification decline to make any order. I have come to the conclusion that I should follow the view, tentative though it was, favoured by Lord Davidson in Walker. The difficulty in which such an order may place the respondents in deciding what action to take in respect of the petitioner seems to me to be more theoretical than real.

[17] I have therefore granted in the petitioner's favour an order on the Scottish Ministers to secure the transfer of the petitioner to conditions of detention which comply with Article 3 of the Convention, whether within HM Prison Barlinnie or in any other prison, and that within seventy two hours. The last mentioned period is shorter than the period sought by Mr Summers, and longer than the period sought by Mr Collins. It is, as best I can judge, a reasonable period within which to effect the transfer of the petitioner to an alternative location.