Scottish Court of Session Decisions

In the petitioner's cell it was not possible for both prisoners to sit at the table and to eat, or write a letter, at the same time. According to Mr Reid's report the Scottish Prison Service have recognised the need for more space in shared cells by providing in their draft Design Manual for new prison cells that there should be a minimum space of 5.5 m² per person or 4.5 m² excluding integral toilet facilities. No other regulations or standards relating to cell dimensions had direct application to the petitioner's cell. However, it is the policy of the Scottish Prison Service to seek to apply the requirements of, and the standards set by, the European Prison Rules (Recommendation No.R(87)3 adopted by the Committee of Ministers of the Council of Europe on 12 February 1987). Rule 15 states that the accommodation provided for prisoners should include "a reasonable amount of space". At no stage was it suggested by any witness, or by the respondents, that the cell was of an adequate size for two people to spend more or less the whole day and night together. Counsel for the petitioner also referred to the United Nations Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders on 30 August 1955) and certain reports of the Committee for the Prevention of Torture (to the work of which I shall refer later), none of which recommended any more specific standards for existing cells. Having regard to the size of the cell, the way in which it was furnished, the useable space, free space and circulation space therein, the time that had to be spent there and the fact that almost all the normal activities of daily living had to be undertaken there, it was plainly small, cramped and overcrowded. It was not a bedroom alone; it was a livingroom, dining room, bathroom and bedroom. The cell was, in my opinion, not of an adequate size for the use to which it was put.

1. There are many confounding factors that make it impossible from the data available to establish overcrowding as a cause of mental disorder in prisons.
2. These factors include lack of proper measurement of mental disorder and a difficulty of untangling the effects of recency of arrival within prison and type of accommodation.
3. The absence of evidence for an effect is not the same as an absence of an effect, however, the necessary empirical studies are not available."

That was not the evidence. He also reported that, from his meeting with Mr Napier and his description of his approach to dealing with prison life, it would seem that he did not have the self-efficacy to help to counteract the Barlinnie experience. Again that is not consistent with the evidence. In relation to one matter he speculated. While the petitioner was clearly distressed by his appearance, there was no basis for Professor Canter to conclude that his adverse feelings about himself were "doubtless", aggravated by the fact that his unsightly appearance, in close proximity to his cell co-occupant as well as to other prisoners during the out-of-cell times, was treated by them with disgust and probably anxiety as to whether his condition was infectious. No prisoner or member of staff gave evidence of being aware of the petitioner or his eczema. As a result I have attached no weight to any conclusions Professor Canter appeared to draw about the actual impact on the petitioner. That does not, however, undermine the conclusions he drew about the features of the conditions in C Hall that were likely to have an adverse impact on the mental state of a person such as the petitioner. His evidence on that was unchallenged. He expressed his opinion thus:

He went on to further conclude:

In my opinion, that view is consistent with the impact that the conditions did in fact have upon the petitioner. He did manage to get through his period in C Hall without suffering mental illness, but was constantly made to feel small, inadequate and worthless by the combination of conditions in which he was detained, his perception of the threat these conditions posed to his vulnerable skin, and the stress which that combination of factors caused.

elements of slopping out or the impoverished regime of C Hall did. Indeed the stress associated with suddenly being compelled against his will to face up to the charge he had tried to avoid at that stage, on the evidence of both Dr Forsyth and Dr Donaldson, a sufficient explanation for the outbreak. I agree with the opinion of Dr Donaldson that, where he had been in detention for only 24 hours, it is very unlikely that the outbreak was caused by the conditions of his detention.

FRAMEWORK OF LEGAL ANALYSIS

In the end the case advanced by counsel for the petitioner was that the petitioner was subjected to degrading treatment. Whether the petitioner was detained in conditions which infringed Article 3 of the Convention is largely a question of fact. Parties have referred to a body of jurisprudence, principally of the European Court of Human Rights, both definitive of what is necessary to, and illustrative of what has been shown to, amount to an infringement of Article 3. The principal question for me is whether the petitioner was, as a matter of fact, detained in conditions which were such as to constitute, as a matter of law, an infringement of Article 3. In the event that such an infringement has not been established, there is a similar question in relation to infringement of Article 8. That again is largely a question of fact. There is no doubt that, if either Convention right has been infringed, that infringement was the responsibility of a public authority and Section 6 of the Human Rights Act 1998 is engaged. It provides that it is unlawful for any public authority to act in a way which is incompatible with a Convention Right and defines "act" as including failing to act. There is then the controversial question whether Section 57(2) of the Scotland Act 1998 has also been engaged. The petitioner seeks to hold the Scottish Ministers directly responsible for any infringement. Section 57(2) provides:

Section 44 defines the Scottish Executive as consisting of the first minister, his ministers and the law officers, and provides further for the members of the Scottish Executive to be referred to collectively as "the Scottish Ministers", the respondents to this petition. Two questions arise. The first is whether what occurred to the petitioner was the result of an "act". The respondents have submitted that the essence of the case made for the petitioner is of a failure to act and that does not fall within Section 57(2). The second question is whether what was done, either as an act or failure to act, was committed by one or more members of the Scottish Executive. The respondents accept that, in respect of any finding under the Human Rights Act, it is appropriate that the finding is made against them, since they accept responsibility for the Scottish Prison Service as a public authority. However, they contest the propriety of any finding under Section 57(2) of the Scotland Act, unless both questions are answered against their submissions. If any of these issues is answered in favour of the petitioner, the question of remedy arises. The petitioner also makes a case against the respondents for damages at common law for breach of their duty to take reasonable care for his health and safety.

In 1994 the Committee visited Barlinnie and inspected C Hall, in relation to which they said:

The delegation went on to describe the chamber pots as small and inconvenient to use. These were plainly different from the new chamber pots in use in 1991. Faeces were packaged and removed from the cell via the window. The delegation were concerned that prisoners might remain in their cells up to 23 hours per day, and that most prisoners were held two to a cell which was of an acceptable size for one person but represented cramped accommodation for two. The aspect of inadequate lavatory facilities that concerned them most was the requirement to defecate in the presence of another. They considered the length of the period of detention could be relevant to the question whether the conditions of detention should be viewed as degrading. The delegation reported that they had been informed by the Scottish Prison Service that it should be possible to introduce integral sanitation in all prison cells by 1999. The Committee recommended that the provision of integral sanitation should be accorded a very high priority. They also recommended that prison officers should be given clear instructions that a request made by a prisoner during the day to be released from his cell for the purpose of using a lavatory should be granted, unless significant security considerations dictated otherwise, and that appropriate steps should be taken to improve the regime activities with the objective of ensuring that prisoners spent 8 hours or more per day outside their cells engaged in purposeful activity of a varied nature. While it is likely that the fabric and furnishings of the cells in C Hall were in worse condition in 1994 than they were in 2001, and while a prisoner urinating or defecating was exposed to the full view of cell mate and had a chamber pot of poor quality, the basic elements of the triple vices which prevailed in 1994 remained in place in 2001. Prior to that report in 1994, the Committee had twice visited prisons in England and Wales which were comparable to Barlinnie and had expressed similar views about these three elements of prison conditions.

Dr Coyle explained that, in his experience, prisoners did find the process degrading. Indeed that was one of the reasons why there was such a rush every morning to the toilets when prisoners were opened up. They would do whatever they could do avoid using the pot or bucket during the night. Equally, the staff on duty found supervising slopping out to be quite an obnoxious task. In their report into the Prison Service in England and Wales, following upon the riots at Strangeways and other prisons in England in 1990, Lord Woolf and the then Chief Inspector of Prisons for England and Wales, Judge Stephen Tumin recorded, at para.11-101, that successive Chief Inspectors in England and Wales had made it clear that they regarded the practice of slopping out to be uncivilised, unhygienic and degrading. At para.11.108 they said:

That proposition applied a fortiori to prisoners on remand. Dr Coyle expressed the view that the general practice of providing little activity for remand prisoners and confining them to their cells for the bulk of night and day (apparently to allow them free scope to prepare their defence) compounded the degradation of slopping out, especially when they were confined in stuffy, gloomy and cramped conditions shared with another. He had been able to demonstrate at Brixton Prison that it was possible to allow prisoners to spend far more time outwith their cells within the Hall, without prejudicing security. There was no reason why that could not have been done at Barlinnie by, for example, adjusting staff/prisoner ratios. The unsatisfactory conditions within the cell were far less significant when the cell was used primarily for sleeping and for more limited periods during the day.

RELEVANT JURISPRUDENCE ON ARTICLE 3 OF THE CONVENTION

The Court decided that shaving the applicant's head, in the context of punishing him by confining him in an isolation cell for writing critical and offensive remarks about prison wardens and state organs, amounted to degrading treatment within the meaning of Article 3. That decision was made without a finding that the conduct was intended to humiliate the applicant.

In the case of Selmouni it was observed that, having regard to the increasingly high standards being required in the field of human rights, acts previously classified as "inhuman and degrading", might now be regarded as torture.

The similar decision made on 30 June 1993 in NH v United Kingdom (Application No 21447/93), an application relating to the same segregation area in Wandsworth Prison in 1986, was greatly influenced by the decision in Delazarus. That cell had many of the features of the petitioner's cell. However, again the particular problem caused by overcrowding and double occupancy did not arise.

The general reference to conditions included reports by the Committee for the Prevention of Torture describing the washing and sanitary facilities which were adjacent to the cell as "appalling".

The cell was apparently 2 x 5 x 3 m. The applicant was the sole occupant of the cell. The finding of degrading treatment was made, albeit there was no evidence that there was a positive intention to humiliate or debase the applicant. When Delegates from the Court visited the prison, improvements were already under way. However, the applicant had been held in the original conditions since 1996, including a period of eight months after the Convention had come into force in the Ukraine. The Court noted that the Ukraine had serious socio-economic problems and was struggling under difficult economic conditions, but observed that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. The Court also observed that the economic problems faced by Ukraine could not, in any event, explain or excuse the particular conditions of detention in which the applicant was held.

It was clear from the unchallenged evidence of the other prisoners that that sort of feeling was widespread. It was that which led to prisoners wrapping up the excrement from their chamber pots, usually in plastic bags, and then depositing the plastic bags in the sluice or lavatories. The fact that, prior to the installation of mesh on the cell windows, these packages were regularly thrown from the windows shows just how long-standing has been this aversion. On the occasions when his cell mate did defecate, the petitioner had to put paper in his nose to try to modify the impact of the smell on him. He felt disgusted on the two occasions on which it occurred. In describing the change in his circumstances when he went to Shotts Prison and occupied a cell on his own with an integral toilet, he explained the relief at no longer getting cramps in his stomach through "holding it in". Although truly disgusting events occurred only twice in the cell, and to that extent the petitioner's experience was better than that of many other prisoners, the threat that either would require to defecate in the cell was ever present because of the uncertainty about whether a request to go to the toilet would be granted. The petitioner's release for slopping out first thing in the morning clearly gave him no sense of relief in view of the disgusting conditions in which it took place, the pervasive stench, and the pressure and chaos of the whole exercise. Participating in the practice made the petitioner feel small. In his words it "got to him" and "put him down". The impression of a truly chaotic and disgusting scene every morning at slopping out, created by the various descriptions of this procedure by the prisoner witnesses and, to a slightly lesser extent, prison staff, was a striking feature of the evidence. The crucial impact that it had on the petitioner was to overwhelm his efforts to maintain his hygiene routine. He gave up even trying to take a shower early in his period in C Hall, because his eczema made taking a shower distressing and he was discouraged by the difficulty of getting one in any event. Such water that he could take to his cell was inadequate for the purpose of washing his eczematous skin properly and, once it had been used, it was not appropriate for the care of infected skin. Of crucial importance to my determination in this case is the effect on the petitioner of the serious outbreak of eczema. It is important to my determination in three respects. Firstly, I have already determined that its resurgence and persistence were caused by the conditions of detention. Secondly, its very presence was a source of acute embarrassment and a feeling of humiliation to the petitioner which he described as causing him a degree of mental stress. Thirdly, the petitioner believed that his infected eczema was caused by the conditions of his detention, in particular slopping out. His belief that the two were linked was entirely reasonable. He acted immediately to try to secure his transfer to better conditions. His solicitor's request of 22 May was refused in a letter of 24 May written by Mr Lorrain-Smith in which he said: "As Mr Napier is currently a Remand Prisoner, he will continue to be located within C Hall in HM Prison Barlinnie". The petitioner was extremely anxious about the link between the outbreak of his skin complaint and the prison conditions. That behaviour is in contrast to the normal resigned acceptance of their lot by prisoners. It demonstrated that the petitioner was feeling the impact of his eczema acutely. He persisted in his efforts to secure a move by making a number of court applications. His persistence was ultimately rewarded when Lord Macfadyen pronounced his interim order in this petition.

In applying this right to the situation where a public authority has responsibility for the control and care of a person in an institution, "private life" includes the conditions in which the person is held and the circumstances in which he has to undertake the particularly personal, regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness particularly where he suffers from a serious skin complaint which requires a regular regime of care. That is self-evident. It is clear from Raninen v Finland (1997) 26 EHRR 563 at para 63, a case relating to unnecessary handcuffing for 2 hours in the context of an unlawful detention, that treatment which does not attain a level of severity such as to bring it within the scope of Article 3, may give rise to a violation of Article 8. I do not accept the submission made by counsel for the respondents that Article 8 is restricted to different aspects of detention, such as interference with prisoners' mail, prevention of contact with their family and intimate body searches. It is plain that the detention of the petitioner in the squalid conditions which I have recounted, taken together with subjecting him to the regime of slopping out as it effected his routine, necessary, personal activities amounts, on the face of it, to an infringement of Article 8.

I shall deal with that matter once I have addressed the question whether any finding of infringement of a Convention right should be made in terms of both the Human Rights Act, section 6, and the Scotland Act, section 57(2). Counsel for the respondents submitted that any such finding should be made only in terms of Section 6 of the Human Rights Act.

It was thus the Governor, acting within his statutory powers, who initially allocated the petitioner to C Hall and subsequently turned down the request to remove him into Convention complaint conditions. The respondents submitted that what was in issue in this case was not an act or omission of the respondents but an act or omission of the Governor. When he exercised his powers in terms of Rule 13(2), the Governor was acting independently of the control of the respondents.

There was no evidence that the designation of C Hall as the hall for prisoners on remand, such as the petitioner, was the result of any particular determination made by the Secretary of State. However, the circumstances which led to the petitioner being assigned to C Hall indicate that he was not allocated there by reason of any decision or action of the Governor. That occurred purely and simply because he was held on remand. He was sent to the hall in which remand prisoners were held. It was plain that C Hall was assigned that role as a matter of policy by the Scottish Prison Service Management rather than by the Governor of Barlinnie Prison. And, as William Pretswell, Director of Finance and Business Services for the Scottish Prison Service, made clear, what the Scottish Prisoner Service does or does not do is the responsibility of the Scottish Ministers. Although the Scottish Prison Service is described as an "Executive Agency" of the Scottish Executive Justice Department, that is purely a description of the Service as a department of the Scottish Executive. Everyone who works there is a civil servant. In particular, all prison staff and headquarters staff are civil servants who work for the Scottish Ministers. Provision is made for the civil service in Section 51 of the Scotland Act. Section 51(2) states that service as a member of the staff of the Scottish Administration shall be service in the Home Civil Service. Although "Scottish Administration" is nowhere defined in the Act, Section 126(7) provides that references to "members of the staff of the Scottish Administration" are to the staff of inter alia "members of the Scottish Executive" who, in terms of Section 44(2), are referred to collectively as "the Scottish Ministers", the respondents in this petition. The petitioner was not confined in the conditions of which he complains because of some unilateral independent action by the prison Governor. He was there because, as a matter of the respondents' policy, that is where remand prisoners were held. That is why he was allocated to C Hall on his committal to prison and why his request for a move was refused and he continued to be held there.

A similar indication was given to the then Chief Inspector of Prisons, Clive Fairweather. The issue was not a new one in 1994. Following an earlier CPT report into conditions in certain English prisons in 1990 and the report by Lord Woolf and Judge Tumin, it was accepted by Prison Services throughout the United Kingdom that slopping out should be eliminated as soon as was reasonably practicable. In fact slopping out was, with a few particular exceptions, eliminated in prisons in England and Wales by April 1996. Mr Pretswell explained that some of the measures adopted there to introduce in-cell sanitation were far from ideal and not such as the Scottish Prison Service were prepared to adopt. He explained that, in addition, the Service in England and Wales had access to greater spare capacity to which to transfer prisoners while refurbishment work was being carried out. For these reasons, and because of the various factors mentioned earlier which put pressure on resources, the 1999 target or predicted date could not be met. It had been reasonable to review the position in 1998 and then again in 2002 and to adapt policy accordingly.

The decision was made not to use those available funds to solve the slopping out problem. Secondly, although the proposed new prisons will not be built for some time, C Hall has now been refurbished. Integral sanitation and power have been installed. Prisoners were decanted to E Hall at Barlinnie, which was described by Mr Pretswell as the "contingency hall". After enabling works had been completed, the refurbishment took six months and cost either £3.6m or £4m. The work done is of a similar nature to that done on D Hall in 1997/98. That took longer than expected and, as a result of industrial action following completion of the work, the hall was out of commission for a total of 18 months. The completion of D Hall coincided roughly with the 1998 estates review when the projected refurbishment of other halls, including C Hall, was suspended. Mr Pretswell did not at any stage in his evidence suggest that it would not have been possible to carry out the refurbishment of C Hall at an earlier date.

1. any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
2. the consequences of any decision (of that or any other court) in respect of that act,

I read that sub-section as enabling the court to decide that any award of damages for fault should be just satisfaction when taken along with the Court's finding that Article 3 was infringed. Section 100 of the Scotland Act applies the same test. Having regard to the relatively short period of time involved, I consider that the finding I have already made, combined with the award of damages for solatium, is just satisfaction to the petitioner. It would in any event be extremely difficult to quantify compensation for any element of the petitioner's experience of his conditions which would not be adequately compensated in this way, bearing in mind the role of stress in causing the petitioner's eczema to flare up, the significance that I have already attributed to the conditions of detention in causing that stress, and the account I have taken of his psychological symptoms in assessing solatium.