Nigel Mckenzie (ap) And Others V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Date | 02 August 2004 |
| Docket Number | P1025/04, |
| Court | Court of Session |
| Published date | 02 August 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P1025/04, P1026/04, P1027/04, P1028/04, P1029/04, P1030/04 and P1031/04
| OPINION OF LORD CARLOWAY in the petitions of NIGEL McKENZIE (A.P.) and others, Petitioners against THE SCOTTISH MINISTERS Respondents ________________ |
Petitioners : Bovey QC, Blair; Balfour & Manson
Respondents : Brailsford QC; Solicitor to the Scottish Executive
2 August 2004
- The Petitioners' Averments
[1]The respondents, through their agency the Scottish Prison Service, control prison conditions in terms of the Prisons (Scotland) Act 1989. The Prisons and Young Offenders Institutions (Scotland) Regulations 1994 (SI 1994 No 1931) contain detailed rules concerning the appropriate nature of prison conditions including accommodation, washing, education, work, exercise and recreation. A number of prisoners have raised petitions for :
"judicial review of acts and decisions to detain the petitioner in conditions which violate Article 3 et separatim Article 8 of the European Convention of Human Rights and Fundamental Freedoms 1950".
Some of the petitioners have sought only first orders for service and intimation but the present dispute concerns seven petitioners who, prior to such service and intimation, also seek an interim:
"(f) order ordaining the respondents to secure the confinement of the petitioner (i) in conditions of detention where he does not while sharing a cell require to use a toilet facility in that cell; and (ii) in conditions of detention where he does not require to use a toilet facility other than a purpose-built, fixed and flushing-action toilet with a related supply of running water and wash basin; [and]
(g) interdict [prohibiting] the respondents from transferring the petitioner to conditions where he will require to share a cell when using a toilet facility in that cell".
The ground for seeking the orders is expressly stated to be because the conditions in which the petitioners are kept amount to breaches of the general provisions of articles 3 and 8 (pleas-in-law 6 to 9) and not of any more specific statutory duty. Failing such orders, the petitioners seek interim declarators in similar terms.
[2]Each petitioner is detained in A Hall of Saughton Prison, Edinburgh. This Hall is used for prisons requiring special conditions of protection from other prisoners. Although there are variations in the precise conditions of each petitioner, as a generality their complaints concern what has become popularly known as the "slopping out" regime in the Hall. The cells do not have individual toilet facilities. Rather there is a common ablutions area where communal toilets are located. However, at night, the prisoners are confined to their cells and not allowed to use the communal facilities. Each cell has a jug, which can be filled in advance with water from the ablutions area, and a basin for washing in. Each prisoner is provided with a shallow chamber pot, into which he may defecate, and a plastic container, into which he may urinate. The prisoners maintain that this equipment is not clean when supplied. Some prisoners maintain that no toilet paper is available. Since most of the prisoners share their cells with one other prisoner, any urination or defecation has to take place in the presence of the other prisoner. If the pot and container become full and require re-use, the only options are either to throw the contents out of the window or to use a newspaper or other article to defecate into. All of this is said to be degrading to both cellmates and the smell is very unpleasant. Every morning, and at other times during the day, the "slopping out" procedure takes place. All the prisoners on a particular landing (perhaps 50 or so) are required to empty the contents of the pots and containers into two toilets and a sluice respectively. Spillages and blockages are not uncommon. This all occurs in the same area where the prisoners have access to drinking water and require to wash, shower, shave and brush their teeth. Furthermore, while some prisoners are leaving their cells to slop out, others are passing by taking their breakfasts to their cells. Cutlery and mugs are cleaned in the ablutions area.
[3]A number of other complaints are made about prison conditions, not directly related to the toilet facilities. These include the size, lighting, cleanliness, heating and ventilation of the cells, the quality of the food and the cleanliness of the bedding. Some prisoners complain of lice infestation. The averments also deal with the lack of opportunities for work and recreation and the consequent monotony of existence. There are education classes lasting two hours on two days every week, physical education every morning (although places may be limited) and work placements for convicted prisons. There is an outdoor exercise period of one hour daily and a recreation period on weekdays from 7 pm until 8.25 pm. Otherwise, the prisoners are locked in their cells from 8.30 pm until 7.40 am on weekdays and from 4.30 pm to 8.45 am at the weekends.
[4]The petitioners quote statements from a number of persons who have expressed their opinions upon prison conditions. These include the Scottish Prison Complaints Commissioner, Joan Aitken, who, in September 2000, said that "slopping out is a degrading, unhygienic and unpleasant part of prison life". The Chief Inspector of Prisons also referred to slopping out as a degrading practice in the same year and called for an end to the use of chambers pots "as a priority". He made other miscellaneous comments on the adverse nature of the prison's conditions. The respondents have given sundry assurances that the practice of slopping out is to be phased out. In 1994, for example, their predecessors told the Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment that this could be done within five years. It was not.
[5]It is said that the conditions give rise to increased risks to health, notably from contact with faecal material. They also cause the petitioners "to experience feelings of loss of self-esteem, stress, depression, disgust, embarrassment, humiliation and mental anguish related thereto". The petitioners aver that "the use of a chamber pot and bottle is inherently degrading and unsafe" and that their "human dignity is diminished" by the conditions which also "give rise to feelings...of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance". Under reference to a large body of case law and rules, most of which were not referred to in submissions, it is averred that the conditions subject the petitioners to inhuman and degrading treatment in terms of article 3 of the Convention. Alternatively, they involve an unjustified interference with the petitioners' rights to respect for their family life and are contrary to article 8. According to the petitions, the petitioners have been detained in the conditions averred by the governor of Saughton and that, in so doing, he has acted ultra vires. The contention is that the governor and the respondents have failed to act in terms compatible with the Convention and this is unlawful by virtue of section 6 of the Human Rights Act 1998 and section 57(2) of the Scotland Act 1998. Although the petitioners make reference to the terms of the Prisons and Young Offenders Institution (Scotland) Rules 1994 (supra), which contain detailed rules regarding the treatment and conditions of prisoners and the mode of redress open to them, these Rules are not founded upon specifically in relation to the interim orders sought. Equally, although the actions of the governor and the respondents are also said to breach the general common law duty to take reasonable care for the safety of prisoners, that duty is not founded upon on this aspect of the case.
[6]Apart from the generalities, some particular matters relate to individual petitioners. Walter Allan is said to suffer from conjunctivitis, aggravated by the conditions of ventilation and inadequate washing facilities. This was countered by a medical report produced by the respondents. Thomas Connor is 77, now in a single cell but with "prostrate (sic) bladder problems" causing him to urinate more often. He requires a stick to walk but cannot do this if he is slopping out. He is unable to bend down in the shower, yet needs to sit in order to use a shower safely. He is unable to squat so as to use his chamber pot. He has had two strokes. Angus MacPherson maintains that he has neither pot nor urine container and so defecates onto newspaper at night and uses an inadequate old disinfectant bottle for urination.
2. Context of the Applications
[7] The applications for interim orders were presented on the motion roll as requiring the urgent attention of the Court. However, the cases do not represent isolated examples of complaints about prison conditions. Rather there are several strands of recent cases on the subject. The first stems from Andrew Scott and another, Petitioners 2002 SCLR 166. There, the same basic issues as are raised here were tabled by two inmates of Barlinnie Prison, Glasgow. Lord Ordinary held that it was not competent to grant interim orders against the Scottish Ministers standing section 21 of the Crown Proceedings Act 1947 (c 44) and the decision of the Division in McDonald v Secretary of State for Scotland 1994 SC 234. Before so deciding, he was referred to M v The Home Office [1994] 1 AC 377; British Medical Association v The Greater Glasgow Health Board 1989 SC (HL) 65; and the views of the authors in Clyde and Edwards : Judicial Review (para 23.37). On the merits, he was referred to sundry decisions of the European Court of Human Rights and reached the view that the issue of whether article 3 had been breached was one of degree and, to some extent, intention. At the interim stage at which he was considering the case, he concluded that he could not...
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