Patrick Christopher Kelly v The Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 20 October 2014 |
| Neutral Citation | [2014] EWHC 3440 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 9WR01897 |
| Date | 20 October 2014 |
[2014] EWHC 3440 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sheffield Combined Court Centre,
50 West Bar, Sheffield, S3 8PH
Mr Justice Hickinbottom
Case No: 9WR01897
Patrick Christopher Kelly acting in person
Ben Jaffey (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 20 October 2014
Introduction
The Claimant is a serving prisoner at HMP Wakefield, but he was in custody at HMP Long Lartin between May 2008 and 30 September 2014. In this action, he claims that at HMP Long Lartin he was detained in degrading conditions, in that the sanitation system required him at times to urinate and defecate in a bucket in his cell. That treatment, he says, was in breach of article 3 of the European Convention on Human Rights. The Claimant specifically relies upon Napier v The Scottish Ministers [2004] Scot CS 100 in which the Outer House of the Court of Session in Scotland found that a prisoner's article 3 rights were violated by the prison conditions in HMP Barlinnie Prison. Insofar as the conditions at HMP Long Lartin did not reach the requisite threshold for a claim under article 3, the Claimant contends that his rights to private life under article 8 were breached. He seeks a declaration that his Convention rights were infringed, and damages.
Article 3 provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
In this case, the Claimant does not suggest that his treatment in prison was either torture or inhuman; but he does say that it was "degrading" within article 3.
Article 8 provides:
"1. Everyone has the right to his private and family life, his home and his correspondence.
2. There should be no interference by public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights or freedoms of others."
The Claimant contends that the sanitation arrangements at HMP Long Lartin breached his right to respect for his private life.
The Defendant denies any breach of any human or other right, and denies the claim.
History of the Claim
In claiming that the sanitation regime in prison subjected him to treatment contrary to his human rights, the Claimant is not unique. Over 550 such claims have been made, mainly in respect of conditions at HMP Albany and HMP Long Lartin.
The vast majority of prison cells in the United Kingdom have in-cell sanitation. However, in some older prisons (including HMP Albany and HMP Long Lartin) there are some cells without, because to restructure the accommodation to put in such facilities is impracticable. All of the claims concerned single cell accommodation, without in-cell sanitation, which tends to be used for higher category (i.e. Category A or B) prisoners. HMP Long Lartin has 308 such cells. It is accommodates only Category A prisoners.
With a view to effective case management of the claims, two claims were chosen as lead cases, i.e. cases deliberately selected to give guidance that would enable most if not all of the remaining cases to be resolved without a further trial. Both cases concerned conditions at HMP Albany, although the sanitation regime at HMP Long Lartin was thought to be, at least, very similar. Those two actions were tried by me in 2011, over about two weeks. As intended, a wide range of issues were ventilated, argued and ultimately determined, with the benefit of considerable amounts of evidence including expert evidence.
I dismissed both claims, in a judgment reported as Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB). The main analysis and findings of the judgment – which, I reiterate, related to cases in which the claimants had been held at HMP Albany – were as follows.
The authorities establish, clearly and firmly, that a high level of suffering is required to trigger article 3, put in various ways in the cases, e.g. article 3 is engaged only where there has been resulting "…intense physical or mental suffering" (Pretty v United Kingdom (2002) 35 EHRR 1 at [52]) or where the court has found the treatment of an individual has "adversely affected his or her personality" (Kalashnikov v Russia (2003) 36 EHRR 34 at [95]). The test with regard to minimum severity is an objective test, to be determined on the basis of all relevant circumstances, including the effects that the treatment or conditions are likely to have upon a person with the attributes of the victim.
Where there is a claim that prison conditions breach article 3, that high threshold applies. Imprisonment as a legitimate punishment inherently involves a degree of suffering: and, for article 3 to be triggered, something more than that is clearly required. Although, in this context, the Strasbourg jurisprudence well-recognises that a person subject to detention by the state is in a peculiarly vulnerable position, as I said in Grant & Gleaves (at [52]):
"… [T]he definition of "degrading treatment" is focused on the effects on the victim; and, as the Strasbourg cases indicate, unless a claimant can show, by direct or inferential evidence, that the ill-treatment in fact caused him serious suffering in terms of (e.g.) physical or psychiatric injury, or psychological harm or particularly serious evidenced distress, it will usually be difficult for him in practice to show that that objective test has been satisfied…. He may be able to do so if, for example, (i) it can be inferred from the nature of his ill-treatment that he must have suffered distress or anguish of a sufficient level, or (ii) he suffered from a mental condition that meant that he could not fully appreciate his own suffering, or protect himself from it by (e.g.) pursuing a complaints procedure."
A requirement for a prisoner to urinate or defecate into a bucket is not of itself degrading and a violation of article 3. In every prison case, where complaint is made of the sanitation system, whether there is a breach of article 3 requires the treatment of the prisoner to be considered in full context.
There was no foundation for any complaint in respect of prison conditions at HMP Albany outside the sanitation scheme, e.g. in respect of cell size, lighting and ventilation.
Nor was there any foundation for any complaint in respect of the day time sanitation system: indeed, virtually no complaint was made in respect of that. Prisoners generally had free and unrestricted access to toilet facilities: there were urinals, toilet cubicles, sinks and a sluice area on each landing, and toilet facilities elsewhere for when they were not on their landing, e.g. in education or employment within the prison. The periods of lock-up during the day were usually regular and known in advance (e.g. at lunchtimes), and prisoners were generally able to regulate themselves accordingly, save in exceptional circumstances, e.g. when they were struck by a sudden and virulent illness. At other periods during the day when a prisoner was confined to his cell (which sometimes occurred if, e.g., he was not in education or employment), he could usually contact a prison officer by use of a bell and ask to be manually released to use the facilities.
Prisoners were confined to their cells for about 13–15 hours every evening/night. Then, they had no free access to a toilet; although, during this period, each cell door had an electronic unlocking Night San system, which, when working properly, enabled one prisoner per landing out of his cell at any time to use the facilities. That system was not perfect: it sometimes involved queuing and, for one reason or another, the system sometimes failed. However, the problems with the system were not frequent; and the regime obliged prisoners to use a bucket to urinate only rarely, and to defecate extremely rarely being almost exclusively limited to sudden illness.
As a backup, for use when necessary, in his cell each prisoner had a 5 litre bucket with lid, toilet rolls, a handwashing bowl, a 2 litre jug for water, soap, a toothbrush and toothpaste, deodorant, a towel and air freshener. Prisoners could also purchase a hot water flask and are provided with cleaning materials such as disinfectant.
In any event, prisoners were not obliged to have any waste in their cell for any substantial period, being able to empty his bucket at the first opportunity he had to leave his cell. At night, that could be by use of the Night San exit system. Otherwise, it would be first thing the following morning. The occasions when a used bucket would have to be in the cell for any substantial length of time were vanishingly rare.
In terms of emptying the bucket, there were sluice facilities and cleaning materials (cleaning solution, brushes and disinfectant) on each landing; and prisoners were given instructions in how to use, and empty, the bucket. The sluice was "public", but it could be used without any significant queuing or jostling, and in uncramped and reasonably unrestrained circumstances.
There was no evidence that the regime caused any material additional risk to the health or well-being of prisoners. I accepted, of course, that having to urinate and possibly defecate in a cell in which one has to sleep and eat, is far from ideal. There are inevitable risks of (e.g.) splashing and spillage and, as a result, there must be to some extent a higher risk of infection as a result, particularly if the prisoner does not take care. The small size of the cell inevitably made things more difficult. However, as I found, the obligatory use...
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