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Callison v. Scottish Ministers [2004] ScotCS 155 (25 June 2004)

OUTER HOUSE, COURT OF SESSION

P798/04

OPINION OF

LORD DRUMMOND YOUNG

in the Petition of

JOHN CALLISON

Petitioner;

against

THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review of decisions as to the conditions in which the petitioner is detained

________________

Petitioner: Bovey, QC; Blair; Balfour & Manson

Respondent: (Scottish Ministers): Brailsford, QC; Mure; R Henderson, Solicitor to the Scottish Executive

25 June 2004

[1] The petitioner is a prisoner serving a sentence of eight years' imprisonment. He was convicted in about April 2002. Since 29 April 2002 he has been detained in HM Prison, Peterhead. In the present petition he contends that he has been and is currently detained in conditions that are incompatible with articles 3 and 8 of the European Convention on Human Rights. On that basis he seeks judicial review of certain features of his detention.

[2] The petitioner's complaints relate to two matters. First, he complains that he has been required to use a lavatory facility in a cell while sharing that cell with another person. Secondly, he complains that he is required to use a lavatory facility other than a purpose-built, fixed and flushing-action lavatory with a related supply of running water and wash basin. He avers that, from the start of his detention in HMP Peterhead on 29 April 2002 until 14 April 2003 he was detained in a single cell but did not have the use of an integral or external lavatory. Instead he had to make use of a device known as a "porta-potty". During the period from 14 April 2003 until 23 March 2004 the petitioner was detained in two further cells, which he was required to share with another prisoner. It is averred that those cells were each designed to be occupied by one prisoner. On 23 March 2004 the petitioner was moved to a single occupancy cell because he had made a series of complaints about pains in his legs. The petitioner avers that he reasonably believes that those pains related to circulatory problems that he was experiencing. The provision for sanitation in all those cells was by way of "porta-potties". In no case was there in-cell sanitation or running water. Consequently the petitioner had to urinate and defecate in a porta-potty. When he shared a cell he generally had to do so in front of his cellmate. He avers that he is degraded by having to perform those functions in a confined space in the presence of a cellmate, and by his cellmate's having to do the same in the petitioner's presence. There is no provision for screening the activity. The petitioner also makes complaint about the resulting smells and the residual odour after the lid was placed on the porta-potty. The porta-potties are only emptied twice a week. This happens in an ablutions area where, it is said, spillages on the floor and the blockage of sinks with faecal matter are commonplace. Meals are taken in the cell in the proximity of the porta-potties. There was a suggestion that the petitioner was unable to wash his hands before taking meals, but counsel for the Scottish Ministers stated, and the statement was not challenged, that such washing facilities are in fact available.

[3] In the petition complaint is also made about the size of the cells that the petitioner has been required to occupy and the régime in HMP Peterhead. The cells are said to be small, even when occupied by one prisoner, and poorly ventilated. Under the weekday régime, if the petitioner is working he is allowed out of his cell between 7.45 a.m. and 12.30 p.m., for one hour of recreation in the early afternoon, and for recreation between 6:30 p.m. and 9:30 p.m. If the petitioner is not working, he is allowed out of his cell between 7:45 a.m. and 9 a.m., between 11:30 a.m. and 12:30 p.m., between 4:30 p.m. and 5:30 p.m. and between 6:30 p.m. and 9:30 p.m.. Apart from these periods he is locked in his cell. The weekend régime is that the petitioner is permitted to leave his cell between 7:30 a.m. and 5 p.m.. The petitioner further claims that the régime to which he is exposed is impoverished. He is physically inactive and has extremely limited opportunities for work and education. It is accepted that recently the petitioner has been able to obtain work, making ropes and netting, on most days in the week. The work is described as monotonous. In addition the petitioner attends an education class for one morning per week.

[4] The petitioner also avers that he suffers from ill-health. He has chronic leg problems. These have required surgery in March 2002, because of osteo-arthritis, and in January 2003. The latter operation was apparently not successful, and the petitioner is waiting for a further operation. The petitioner has been diagnosed as having blocked arteries in both legs. It is said that he requires physiotherapy but that this has not been provided. The cramped cell conditions, it is averred, exacerbate the petitioner's leg and knee problems. In this connection reference is made to a report by a Mr Paul Bachoo, a consultant vascular surgeon. I should observe that in that report Mr Bachoo states that the petitioner suffers from peripheral vascular disease (PVD). He expresses the view that, based on a description of conditions in HMP Peterhead, such an environment "is not best suited to someone with PVD". He explains that persons suffering from PVD are instructed to engage in as much programmed physical activity as is possible, in a smoke-free environment. When asked whether the conditions in HMP Peterhead are likely to lead to an exacerbation of the condition, Mr Bachoo states that it was more accurate to suggest that the environment was not suitable for someone with PVD.

[5] The petition makes extensive reference to a report by HM Chief Inspector of Prisons for Scotland dated May 2003 and to a report by Professor Thomas Markus of Strathclyde University, both dealing with conditions within HMP Peterhead. Reference is also made to comments by the Scottish Prison Complaints Commissioner in September 2000. It is sufficient for present purposes to state that all of those reports and comments are severely critical of aspects of the régime in HMP Peterhead, and in particular the practice of slopping out. Thereafter the petitioner avers that the effects of the prison conditions and culture caused him to experience feelings of loss of self-esteem, stress, depression, disgust, embarrassment, humiliation and mental anguish. Those effects were not simply the results of his imprisonment but were caused or materially contributed to by the particular conditions under which he was detained.

[6] That is said to amount to a contravention of articles 3 and 8 of the European Convention on Human Rights. Article 3 provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". Article 8 provides that "Everyone has the right to respect for his private and family life, his home and his correspondence". On the foregoing basis, the petitioner seeks a range of remedies. First, he asks for declarator that the conditions of his detention in HMP Peterhead were and are contrary to articles 3 and 8 of the Convention, in that they subjected him to inhuman or degrading treatment and to unjustified interference with his right to respect for his private life. Secondly, he seeks declarator that the failures of the Governor of HMP Peterhead and of the Scottish Ministers to secure that his conditions of detention were in accordance with those articles of the Convention were acts or failures to act that are unlawful by virtue of section 6(1) of the Human Rights Act 1998 and, as regards the Scottish Ministers, section 57(2) of the Scotland Act 1998. Thirdly, he seeks declarator that the decision to detain and continue to detain him in such conditions was unlawful by virtue of section 6(1) of the Human Rights Act. Fourthly, he seeks declarator that he has suffered loss, injury and damage as a result of fault and negligence on the part of the prison authorities, for whose acts and omissions the Scottish Ministers are responsible. Fifthly, he seeks damages of £20,000, under the Human Rights Act and at common law. Sixthly, he seeks an order ordaining the Scottish Ministers to secure the confinement of the petitioner (1) in conditions of detention where he does not while sharing a cell require to use lavatory facilities in that cell, and (2) in conditions of detention where he does not require to use lavatory facilities other than a purpose-built, fixed and flushing-action lavatory with a related supply of running water and wash-basin. He seeks the grant of such an order ad interim. Secondly, failing such an order, he seeks declarator that the Scottish Ministers should secure his confinement (1) in conditions where he does not while sharing a cell to use a lavatory facility in that cell, and (2) in conditions of detention where he does not require to use a lavatory facility other than a purpose-built, fixed and flushing-action lavatory with a related supply of running water and wash-basin. Such a declarator is sought ad interim.

[7] Immediately after the present petition was lodged a motion was enrolled for an interim order and interim declarator in terms of the sixth and seventh orders sought in the petition. Thereafter I heard a detailed argument on the petitioner's motions. Two areas of law were traversed in the course of the argument. The first was whether the orders sought by the petitioner were competent in view of the terms of section 21 of the Crown Proceedings Act 1947. The second was whether, in the event that the petition satisfied the requirements of competency, an interim order was justified having regard to the usual considerations of a prima facie case and the balance of convenience.

Section 21 of the Crown Proceedings Act 1947
[8] Section 21(1) of the Crown Proceedings Act 1947, so far as applicable in Scotland, is in the following terms:

"In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that: --

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of [interdict] or specific performance, the court shall not grant an [interdict] or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;...".

It is not in dispute that the Scottish Ministers count as the Crown for the purposes of the 1947 Act; that is clear from the definition of "officer" in section 38(2) of the Act, as amended by paragraph 7(2)(c) of Schedule 8 to the Scotland Act 1998.

[9] The petitioner has moved for an interim order in terms of the sixth of the remedies set out in paragraph [6] above. That would involve ordaining the Scottish Ministers to secure the petitioner's confinement in circumstances where he does not require to use lavatory facilities within a cell if he is sharing that cell with another person and does not in any event require to use a lavatory and washing facilities that are not purpose built, with running water. In my opinion such an order is incompetent because of the terms of proviso (a) to section 21(1) of the 1947 Act. The wording of the proviso is that "the court shall not grant an [interdict] or make an order for specific performance but may in lieu thereof make an order declaratory of the rights of the parties". That wording was considered by the Second Division in McDonald v Secretary of State for Scotland, 1994 SC 234, where it was held that section 21 of the 1947 Act had the effect of depriving litigants in Scotland of the remedy of interdict against the Crown. It is clear in my opinion that exactly the same reasoning must apply to any order that the Crown should perform specifically a statutory or common-law duty. McDonald was followed by Lord Johnston in Scott and Davidson, 26 October 2001, where it was treated as authority for the proposition that an interim order for specific performance against the Scottish Ministers was incompetent. In these circumstances I consider that the law is very clear, and no order for specific performance of a statutory or common-law duty can be granted against the Crown, either on an interim or a final basis.

[10] Counsel for the petitioner presented a further argument to the effect that the expression "civil proceedings" as used in the 1947 Act did not include proceedings by way of judicial review. I have considered this argument in an opinion relating to the petition of William Beggs for judicial review, which was heard at the same time as the present petition. For the reasons stated in paragraphs [9]-[11] of that opinion I am of opinion that this argument must be rejected, and that judicial review is encompassed within the expression "civil proceedings" for the purposes of section 21 of the 1947 Act.

[11] The petitioner has also moved for an interim order in terms of the seventh of the remedies set out in paragraph [6] above. That is an order for declarator. Such an order is expressly contemplated by proviso (a) to section 21(1) of the 1947 Act, which refers to the court's making an order declaratory of the rights of the parties in lieu of an order for interdict or specific performance. Section 21(1)(a) does not make any reference to interim declarator. I am nevertheless of opinion that it is competent, in an appropriate case, for the court to pronounce an interim declarator under this section, for the reasons set out in paragraph [12] of my opinion relating to the petition of William Beggs. It is necessary, however, to consider with some care the approach that should be taken to interim declaratory orders pronounced under section 21.

Interim declaratory orders under section 21(1)(a)
[12] In my opinion the general approach of the court to interim declarators pronounced under section 21 should be the same as the approach to interim interdict. The party seeking interim declarator must demonstrate a prima facie case, and it must also appear that the balance of convenience favours the grant of an order ad interim. In relation to the balance of convenience, the need to preserve the status quo may be a relevant consideration. So may the respective strengths of the parties' arguments. In addition to these general considerations, however, I am of opinion that two specific considerations are important in any application for interim declarator under section 21.

[13] First, the court should not pronounce an interim declarator of the parties' rights that prejudges the merits of the case. In any case where the parties' contentions on the facts and law have not been the subject of full argument and, where necessary, evidence, the court cannot reach any concluded opinion on the merits. Any opinion that is formed as to the parties' rights must necessarily be provisional, open to revision once fuller information and more detailed argument are available. Exactly the same is true of any interim declarator pronounced at that stage. Consequently, if the court is asked to pronounce an interim declarator as to the obligations of the Crown, but it appears that the subject matter of the declarator goes beyond a temporary holding operation and involves a determination of the underlying rights and obligations of the parties, the interim declarator should normally be refused. Moreover, in such a case the party seeking the interim declarator will typically ask that it should be granted on the basis that the allegations of fact and contentions of law made by that party are assumed to be accurate. In that event, however, any determination of the parties' rights will proceed on a hypothetical basis, because it is normally impossible at that stage in the proceedings to reach a concluded view on the relevant facts and law. Authority for such an approach is found in the decision of Lord Fraser in Ayr Town Council v Secretary of State for Scotland, 1965 SC 394, and also in the earlier decision of Lord Strachan in Robertson v Lord Advocate, reported as an appendix to Lord Fraser's decision at 1965 SC 400.

[14] Secondly, in considering the balance of convenience the court must recognise that at the stage of an interim order consideration of the issues in dispute is of necessity of a provisional and incomplete nature. In view of that limitation it is important that, at least in cases where a public authority has purported to act under statutory powers, the court should be slow to direct how those powers should be exercised. In particular, the court should not generally pronounce an interim order that imposes major burdens on the public administration, or forecloses significant budgetary decisions. In Scottish Milk Marketing Board v Paris, 1935 SC 287, Lord President Clyde stated (at 298) "the balance of convenience seems to lie in favour of maintaining the public administration... free of interference or obstruction, in accordance with the interpretation officially given to it by its administrators". That passage was cited with approval by Lord Strachan in Robertson (at 1965 SC 402). In the present case I consider this approach to the balance of convenience to be important. I should also add that this principle is not in my opinion affected by the enactment of the Scotland Act 1998 and Human Rights Act 1998 and the consequent incorporation of certain parts of the European Convention on Human Rights into Scots law. I do not believe that it was the intention of either of those statutes that a court should, after hearing partial and incomplete argument, come to a decision that has significant implications for the way in which government is conducted and the allocation of resources among different functions of government. The allocation of resources, in particular, is a matter that depends upon priorities across a wide range of public responsibilities. Determining those priorities is a function of the executive arm of government. It does not seem appropriate that a court, after considering only one area of public responsibility on a provisional basis, should come to an interim decision that requires the immediate expenditure of significant public funds, funds which will of necessity have to be reallocated from other areas of public responsibility.

Merits
[15] Counsel for the petitioner relied heavily on the opinion of Lord Bonomy in Napier v Scottish Ministers, 26 April 2004. That case involved a remand prisoner in HM Prison, Barlinnie, and the conditions in the halls where he was accommodated were the subject of extensive and detailed evidence. It was held that those conditions contravened articles 3 and 8 of the European Convention on Human Rights. Lord Bonomy's conclusion on article 3 was expressed as follows (at paragraph [75]):

"My consideration of the evidence of those whom I have called experienced students and examiners of prison conditions, in light of [the authorities on article 3], has led me to conclude that to detain a person along with another prisoner in a cramped, stuffy and gloomy cell which is inadequate for the occupation of two people, to confine him there together for at least 20 hours on average per day, to deny him overnight access to a toilet throughout the week and for extended periods at the weekend and to thus expose him to both elements of the slopping out process, to provide no structured activity other than daily walking exercise for one hour and one period of recreation lasting an hour and a half in a week, and to confine him to a 'dog box' [a small cell for prisoners in transit] for two hours or so each time he entered or left the prison was, in Scotland in 2001, capable of attaining the minimum level of severity necessary to constitute degrading treatment and thus to infringe Article 3".

In considering that question, the personal circumstances of the prisoner were relevant, and the test was whether he was subjected to "serious ill-treatment". The assessment of whether the necessary level of severity to satisfy that test has been reached is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical and mental effects and the state of health of the victim. After consideration of certain details of the evidence, Lord Bonomy concluded that the petitioner in Napier had been exposed to such treatment, and that there was accordingly a contravention of article 3.

[16] The decision in Napier was reached after consideration of detailed evidence relating to the particular conditions in which the petitioner had been held. A number of features of those conditions were different from those in the present case. In particular, the present petitioner is currently in a single occupancy cell. He only requires to slop out twice per week, whereas the petitioner in Napier required to slop out at least once per day. The periods that the present petitioner is able to spend out of his cell are much more extensive than those involved in Napier, and the weekend régime is quite different. In addition, the petitioner in Napier suffered from eczema, and that complaint clearly played a significant part in Lord Bonomy's decision; that is clear from paragraphs [76] and [77]. While the present petitioner suffers from peripheral vascular disease, the relevance of the conditions in which he is housed to that complaint is clearly very different from the case of eczema. In the present case a report on the conditions experienced by the petitioner in HMP Peterhead is available, prepared by Professor Thomas Markus, who gave evidence for the petitioner in Napier. A medical report on the petitioner is available from Mr Paul Bachoo. While those reports are extensive and detailed, the Scottish Ministers have had no opportunity to adduce evidence in reply, and the views of Professor Markus and Mr Bachoo have of course not been tested by cross-examination. In these circumstances I do not think that I can place great reliance on Napier, apart from the general approach that is taken to the interpretation of articles 3 and 8. The case turned on its specific facts which, so far as I can see at present, may be significantly different from those in the present case.

[17] In the circumstances of the present case, I am of opinion that interim declarator must be refused. First, I am of opinion that it is impossible to distinguish this case from Ayr Town Council v Secretary of State, supra, and Robertson v Lord Advocate, supra. Counsel for the petitioner asks, in effect, that I should pronounce an interim declarator on the basis of the allegations made in the petition and accompanying reports. Those allegations have not been the subject of evidence or full argument. In the circumstances I consider that granting an interim declarator at this stage would involve prejudging the merits of the petition. It would also, of necessity, be pronounced on a hypothetical basis, namely the assumption that the petitioner's factual contentions are broadly correct.

[18] Secondly, I conclude, albeit with some hesitation, that the petitioner's averments do not disclose a prima facie case. His primary contention is that the conditions in which he is held are such as to subject him to inhuman and degrading treatment contrary to article 3 of the Convention. The test of inhuman and degrading treatment is relatively high; "serious ill-treatment" was the test adopted in Napier (at paragraph [75]). In the present case, while the petitioner is subject to the slopping out régime described at paragraph [2] above, he currently occupies a cell on his own. Moreover, the slopping out régime does not appear to be as bad as that experienced by the petitioner in Napier; in particular, the "porta-potties" are only emptied twice a week, not daily, and it is clear that they go some way to keep the smell under control; it is not suggested that the smell was intolerable for any substantial period. Adequate washing facilities do appear to be provided. The periods during which a prisoner is confined in his cell are clearly of great importance for the purposes of article 3. In the present case, the petitioner is permitted to leave his cell for considerable parts of the day, as described in paragraph [3] above. That in my view tends strongly to negate the suggestion that he is subjected to serious ill-treatment. It is also clear that the petitioner has considerable opportunities for work during the day. That also appears to be of importance. Indeed, when the régime to which the petitioner is subjected is looked at as a whole, it appears much more humane than the régime in the remand blocks where the petitioner in Napier was housed; there the prisoners were kept in the cells for much longer, and had much more limited opportunities for constructive use of their time. While the present petitioner suffers from peripheral vascular disease, and the conditions under which he is imprisoned are not, according to Mr Bachoo, best suited to someone suffering from that complaint, it does not appear that there is any serious additional threat to the petitioner's health arising from the conditions in which he is held. There is certainly nothing like the problems associated with the eczema suffered by the petitioner in Napier, which played an important part in the decision in that case. Counsel were agreed that the conditions of the petitioner's imprisonment must be looked at as a whole. When that is done, I do not consider that the treatment to which the petitioner claims that he is subjected can reasonably be considered "serious ill-treatment".

[19] The petitioner also complains of a breach of article 8 of the Convention. It is clear from paragraph [79] of the opinion in Napier that the petitioner's eczema played a major part in the decision, as that condition requires high standards of cleanliness and continual treatment. In the present case, the interference with the petitioner's private life does not in my opinion go beyond what is reasonably necessary to detain him in custody following his conviction for a serious criminal offence. The most substantial complaint made by the petitioner is the lack in his cell of a purpose-built lavatory with running water and a wash basin. While that is clearly inconvenient, it must be set against the considerable periods during the day when the petitioner is not confined in his cell. In addition, I was informed that because of the construction of HMP Peterhead it was impossible to install running water in individual cells. In these circumstances, it does not appear to me that the inconvenience of not having a purpose-built lavatory and running water is disproportionate to the need to imprison the petitioner in an appropriate prison.

[20] Thirdly, I am of opinion that the balance of convenience is strongly against the grant of an interim declarator in the circumstances of the present case. The considerations discussed above at paragraph [14] are clearly of importance. Installing purpose-built lavatories, running water and wash hand basins in individual cells throughout the prisons under the charge of the Scottish Ministers would clearly be expensive. As mentioned above, I was informed that it would be impossible in HMP Peterhead, where the walls are constructed of granite and it would be cheaper to build a new prison than to install plumbing. Changing the régime to allow more time out of the cells would likewise be relatively expensive, in that more prison officers would be required. The present petitioner's case, unlike that in Napier, does not appear to me to present features that are unusual by comparison with the generality of prisoners in Scottish prisons. The one exception is the petitioner's peripheral vascular disease, but that is exacerbated by general features of imprisonment rather than the particular features of imprisonment in HMP Peterhead. It follows that, if I were to grant in interim declarator that the conditions under which the petitioner is imprisoned infringe article 3 or article 8 of the Convention, considerable expenditure would be required to alter conditions in HMP Peterhead, and in all probability in other Scottish prisons as well. That would require immediate expenditure, which would in turn have serious implications for other areas of government expenditure. As I have already stated, I do not think it appropriate that a court should interfere with government budgets in this way when it has only heard argument about limited matters and its decision on those matters can only be on a provisional basis. In addition, I am not satisfied that the conditions in which the petitioner is imprisoned present any serious risk to his health or welfare. In these circumstances I do not think that his personal interests are anywhere near sufficient to outweigh the general point that the court should not, on an interim basis, make decisions that impose major constraints on public expenditure.

[21] For the foregoing reasons I will refuse the petitioner's motions for interim interdict and interim declarator, but I will grant a first order.