Napier v Scottish Ministers

JurisdictionScotland
CourtCourt of Session (Outer House)
Judgment Date10 February 2005
Docket NumberNo 24,No 22

Court of Session Outer House

No 22
Napier
and
Scottish Ministers

Administrative law - Judicial review - Prisons - Overcrowding - Slopping out - Impoverished regime - Degrading treatment - Common law duty of care - Damages - Just satisfaction - Scotland Act 1998 (cap 46), sec 57(2) - Human Rights Act 1998 (cap 42), secs 6, 8(3) - European Convention on Human Rights and Fundamental Freedoms, Arts 3, 8

Between 20 May and 27 June 2001 the petitioner was a remand prisoner in HMP Barlinnie, Glasgow. During that time he was held in conditions whereby he required to share a cell designed for only one prisoner with another prisoner, the washing and toilet facilities and the system for their use were poor, and he spent only a limited time out of the cell and was offered a restricted daily programme of activities. He suffered a severe outbreak of eczema. He also suffered psychological symptoms. He brought a petition for judicial review seeking a determination that the conditions in which he was held were inhuman and degrading, in contravention of Art 3 of the European Convention on Human Rights and Fundamental Freedoms, or that the conditions infringed his right to respect for his personal and family life contained in Art 8. He relied on both the Scotland Act 1998 and the Human Rights Act 1998. He sought damages. He also sought damages at common law on the grounds that the respondents had a duty to take reasonable care for his health and safety and that they had breached that duty. The respondents accepted that the conditions in which the petitioner was held were not satisfactory, but they denied any breach of Arts 3 or 8 or at common law. They denied liability under sec 57(2) of the Scotland Act 1998 on the grounds that the governor of HMP Barlinnie was responsible for selecting the particular part of the prison in which the petitioner was confined, and on the grounds that the petitioner's complaint was in respect of a failure to act rather than an act.

Held that: (1) the petitioner was exposed to conditions of detention which, taken together, were such as to diminish his human dignity and to arouse in him feelings of anxiety, anguish, inferiority and humiliation and he was, accordingly, subjected to degrading treatment which infringed Art 3 of the Convention (paras 75-78); (2) the petitioner was not confined in the conditions of which he complained because of some unilateral independent action by the prison governor but because, as a matter of the respondents' policy, that was where remand prisoners were held; his complaint related to the respondents' positive act of detaining him in conditions which infringed Art 3 and continuing to detain him there when he requested a move; the cell conditions could have been addressed before 2001 but the respondents took a deliberate decision not to address them when they had both the resources and the capacity to do so; sec 57(2) of the Scotland Act 1998 was engaged and the respondents had acted ultra vires by detaining him in such conditions when they were aware of the activity of his eczema (paras 81-90); (3) the obvious infringement of Art 8(1) of the Convention could not be justified and thus excused in terms of Art 8(2) (paras 79, 80, 91); (4) the respondents had breached their duty to take reasonable care for the health and safety of the petitioner (para 92); (5) the psychological symptoms and stress which the petitioner suffered were part and parcel of the impact on his physical health caused by the breach of duty for which the respondents were responsible and damages of 2,450 including interest to date were appropriate (para 93); (6) having regard to the relatively short period of time involved, the finding that Art 3 was infringed and the award of damages for solatium were just satisfaction to the petitioner (para 94); and petitiongranted.

Robert Napier brought a petition under the judicial review procedure in which he sought judicial review of a decision to continue to detain him in inhuman and degrading prison conditions contrary to Arts 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms. He relied on both the Scotland Act 1998 and the Human Rights Act 1998. He sought damages. He also sought damages for negligence. The Scottish Ministers were called as respondents. On 26 June 2001 Lord Macfadyen granted first orders and ordered the respondents to secure the transfer of the petitioner to conditions of detention which complied with Art 3 of the Convention within 72 hours. A reclaiming motion against that interlocutor was subsequently refused without argument.

The petition and answers called before the Lord Ordinary (Lord Bonomy) for a first hearing. At the first hearing the Lord Ordinary fixed a second hearing at which evidence would be led.

Cases referred to:

Aerts v BelgiumHRC (1998) 29 EHRR 50

B v UK (1991) 32 DR 5

Bensan v Croatia App No 62912/00, 16 May and 8 Nov 2002, unreported

Clancy v CairdSC 2000 SC 441

Delazarus v UK App No 17525/90, 16 Feb 2003, unreported

Dougoz v GreeceHRC (2002) 34 EHRR 61

Hattie v LeitchUNK (1889) 16 R 1129

Higgs v Minister of National SecurityELRWLR [2000] 2 AC 228; [2000] 2 WLR 1368

Ireland v UKHRC (1978) 2 EHRR 25

Kalashnikov v RussiaHRC (2003) 36 EHRR 587

Kuznetsov v Ukraine App No 39042/97, 29 Apr 2003, unreported

McLelland v Greater Glasgow Health BoardSC 1999 SC 305; 2001 SLT 446

Moffatt v Secretary of State for Scotland 1995 SLT 729

Mullan v Anderson 1993 SLT 835

NH v UK App No 21447/93, 30 June 1993, unreported

calan v TurkeyHRC (2003) 37 EHRR 10

Peers v GreeceHRC (2001) 33 EHRR 57

Pretty v UKHRCFLRUNK (2002) 35 EHRR 1; [2002] 2 FLR 45; [2002] 2 FCR 97

R v HM AdvocateUNKSCUNKELRWLR [2002] UKPC D3; 2002 SC (PC) 21; 2003 SLT 4; 2003 SCCR 19; [2004] 1 AC 462; [2003] 2 WLR 317

R (on the application of Pretty) v DPPUNKELRWLRUNK [2001] UKHL 61; [2002] 1 AC 800; [2001] 3 WLR 1598; [2002] 1 All ER 1

R v Deputy Governor of Parkhurst Prison, ex p Hague & orsELR [1992] 1 AC 58

Raninen v FinlandHRC (1997) 26 EHRR 563

Redpath v Central SMT Co 1947 SN 177; 1947 SLT (Notes) 59

Selmouni v FranceHRC (2000) 29 EHRR 403

Valasinas v Lithuania App No 44558/98; 12 BHRC 266

Wainwright v Home OfficeUNKUNK [2003] UKHL 53; [2003] 4 All ER 943

Yankov v Bulgaria App No 39084/97; 15 BHRC 592

Textbooks etc. referred to:

Macphail, ID, and Ruxton, LM, "Evidence: The means of proof"in The Laws of Scotland: Stair Memorial Encyclopaedia(Butterworths/Law Society of Scotland, Edinburgh, 1987), vol 10, para 618

Macphail, ID, Sheriff Court Practice (2nd ed, W Green/Scottish Universities Law Institute, Edinburgh, 1998), vol 1, para 16.93

The petition and answers called before the Lord Ordinary (Lord Bonomy) for a second hearing at which evidence was led on various dates between June and October 2003.

At advising, on 26 April 2004-

Lord Bonomy-

Introduction

[1] By this petition Robert Napier seeks a determination that, prior to conviction and while on remand between 20 May and 27 June 2001, a period of about 40 days, he was held in conditions in C Hall of HMP Barlinnie, Glasgow, which were 'inhuman and degrading' in contravention of Art 3 of the European Convention on Human Rights ('the Convention') or, failing that, in conditions which infringed his right to respect for his personal and family life contained in Art 8 of the Convention. In the event that such a determination is made, he seeks damages. He separately seeks damages for physical and psychiatric injury caused by the failure of those in whose custody he was held to take reasonable care for his health by detaining him in conditions which exposed him to the risk of injury to his physical and mental health. While on remand he suffered a severe outbreak of the eczema from which he has suffered throughout his life. He attributed that outbreak to the conditions in which he was held. He also claims that he suffered a mental disorder.

Procedure prior to hearing

[2] The relevant period of detention began on 18 May 2001. The petitioner was detained in terms of two warrants. He applied to the sheriff at Airdrie for bail in respect of each. These applications were considered on 25 and 30 May respectively. It was submitted in support of each application that the conditions in which he was being held contravened Art 3 of the Convention. The Crown opposed the applications and they were refused. The petitioner appealed against both decisions to the High Court, and raised the issue of his conditions in associated devolution minutes presented on 13 June. On 22 June Lord Coulsfield refused the bail appeals. At the same time he dismissed the devolution minutes, apparently on the basis that the lawfulness of the conditions in which the petitioner was detained was a matter for the Court of Session and not the High Court.

[3] Thereafter this petition was raised and came before Lord Macfadyen for a first order and an interim order on 26 June 2001. Having heard counsel for both petitioner and respondents, Lord Macfadyen granted an order on the Scottish Ministers to secure the transfer of the petitioner to conditions of detention which complied with Art 3 of the Convention, whether within HMP Barlinnie or in any other prison, and that within 72 hours. The respondents conceded that the petitioner had a prima facie case that Art 3 of the Convention had been infringed. Lord Macfadyen found that the balance of convenience favoured granting the motion for an interim order. On 28 June the petitioner was moved from C Hall to the residential healthcare unit within HMP Barlinnie. A reclaiming motion against Lord Macfadyen's interlocutor, on the ground that such an order was incompetent, was subsequently refused without argument. The question posed in that reclaiming motion is the subject of other ongoing litigation.

[4] In the course of legal argument before me at the first hearing, parties came to the conclusion that the appropriate procedure for dealing with the live issues in the case was a second...

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