Napier v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 26 June 2001 |
| Date | 26 June 2001 |
| Court | Court of Session (Outer House) |
Court and Reference:Outer House, Court of Session ; P739/01
Lord MacFadyen
Appearances:S Collins (instructed by Drummond Miller, WS) for N; A Summers (instructed by the Solicitor of the Scottish Executive) for the Ministers
Whether interim relief should be granted to a prisoner who argued that the conditions of his detention breached Art 3 European Convention.
N, a remand prisoner at HMP Barlinnie, alleged that the conditions of his detention breached Art 3 European Convention (inhuman or degrading treatment) because (i) his cell, which he shared, had inadequate space, lighting and ventilation, (ii) there was no internal sanitation and so "slopping out" was required, and (iii) there was inadequate exercise and recreation outside the cell. He had medical evidence that the conditions had caused an outbreak of eczema. Reference was also made to a report from a 1994 visit of the European Committee for the Prevention of Torture which concluded that the conditions of detention for remand prisoners at Barlinnie were inadequate because of overcrowding, poor sanitation and inadequate activities. The Scottish Ministers accepted that there was a prima facie case and so there should be a trial of the case, though they denied that the conditions breached Art 3. The issue for the Court was whether interim relief should be granted. The Ministers argued that it would be wrong to grant interim relief because the conditions were applicable to all prisoners and it would be impractical to move them all if they brought similar action, though they accepted that it would not be impractical to move N.
Introduction
1. This is a petition for judicial review in which the petitioner, who is a remand prisoner in HMP Barlinnie, Glasgow, seeks to challenge the conditions in which he is detained there, contending that they are in contravention of his rights under Art 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.
The Petitioners' Pleadings
3. The remedies which the petitioner seeks include:
(a) declarator that the conditions of his detention are contrary to Art 3 of the Convention, being conditions which cause him to be subjected to inhuman or degrading treatment;
(b) 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 Art 3 are acts or failures to act incompatible with his rights under that Article, and are accordingly unlawful by virtue of s. 6(1) of the Human Rights Act 1998 et separatim (as regards the Scottish Ministers) s. 57(2) of the Scotland Act 1998;
(c) an order on the Scottish Ministers to secure his transfer to conditions of detention compliant with Art 3, whether within the prison or in any other prison; and for such an order ad interim; and
(d) damages.
4. The petitioner is 21 years of age. He is detained in HMP Barlinnie on 2 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 Art 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...
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