Robert Napier (ap) V. The Scottishministers For Judicial Review Of A Decision To Continue To Detain The Petitioner In Inhuman And Degrading Prison Conditions Contrary To Ar
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Docket Number | P739/01 |
| Date | 26 April 2004 |
| Court | Court of Session |
| Published date | 26 April 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P739/01
| OPINION OF LORD BONOMY in Petition of ROBERT NAPIER (AP) Petitioner; against THE SCOTTISH MINISTERS Respondents: for Judicial Review of a decision to continue to detain the Petitioner in inhuman and degrading prison conditions contrary to Article 3 et separatim Article 8 of the European Convention on Human Rights ________________ |
Petitioner: O'Neill, Q.C., Collins, Carmichael; Balfour & Manson (for Taylor & Kelly, Coatbridge)
Respondents: Brailsford, Q.C., Dewar, Q.C., Wolffe; R. Henderson, Solicitor to the Scottish Executive
26 April 2004
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 HM Prison, Barlinnie, Glasgow, which were "inhuman and degrading" in contravention of Article 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 Article 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 Article 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 Article 3 of the Convention, whether within HM Prison, Barlinnie or in any other prison, and that within 72 hours. The respondents conceded that the petitioner had a prima facie case that Article 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 HM Prison, 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 hearing at which evidence would be led. That took place on various dates between June and October 2003.
THE PETITIONER AND THE CRIMINAL JUSTICE SYSTEM
[5]The history of the petitioner's involvement with the criminal justice system is depressingly similar to that of so many other young men in Scotland. He had a number of prior convictions and had previously been sentenced to detention. However, the offence which gave rise to the period on remand in issue marked a distinct escalation in the criminality of his behaviour. On 9 May 2001 he had failed to appear for trial at the High Court on an indictment alleging assault, robbery and abduction. The arrest warrant granted on that occasion was executed on 18 May 2001. On that date he also appeared before the sheriff at Airdrie and was remanded in custody on a petition containing a charge of attempting to pervert the course of justice in connection with another petition containing a number of charges, including one of attempted murder, on which he had been granted bail in the High Court on 6 April. Throughout the period to which his complaint of inhuman and degrading treatment relates the petitioner was thus committed to Barlinnie Prison in respect of both the arrest warrant granted following his failure to appear for trial at the High Court and the petition containing the charge of attempting to pervert the course of justice. He was detained in A Hall of Barlinnie overnight, and on 19 May was transferred to C Hall. He was a stranger to neither; he had spent time in both between 30 March and 11 April 2001. Prior to that he had spent three other short periods of custody in Barlinnie Prison, namely 20 June 1997, 9-10 January 1998 and 28-30 January 1998, in conditions similar to those which are the subject of this petition.
PRISON CONDITIONS
(a)General
[6]In June 2001 conditions in A Hall and C Hall were similar. The evidence in this case concentrated on the conditions in C Hall. In the end there was little factual dispute about the conditions in which the petitioner was held there, and such issues as there were between the parties have been fairly easy to resolve. The petitioner's own evidence of the factual situation, while not always entirely accurate, was not challenged on any significant matters. The same is largely true of the prisoners who gave evidence. Counsel for the petitioner concentrated on three principal features of these conditions, namely (1) the accommodation of 2 prisoners in a cell designed for one, (2) the washing and toilet facilities and the system for their use, and (3) the limited time spent out of the cell and the restricted daily programme of activities. His counsel characterised these as the "triple vices" of overcrowding, slopping out and impoverished regime. While I shall look at each one individually, in the final analysis they cannot be viewed in isolation, since each one has an impact on, and is affected by, the others. In addition, there were separate chapters of evidence in relation to other particular features of the conditions of detention, such as illumination and ventilation of the petitioner's cell. Each of the issues thus explored was relevant only in the context of the triple vices. I shall, therefore, set out my findings about the conditions of the petitioner's detention mainly by looking at these three principal features. I deal with overcrowding first because, although it did not cause slopping out or the general regime applied to remand prisoners, it had a significant impact on both.
(b)Overcrowding
[7]There were 180 cells in C Hall, each designed for a single prisoner who would, in accordance with enlightened prison theory of the second half of the 19th century when the Hall was constructed, have ample time to reflect upon the evil or futility of his behaviour, and would, hopefully, resolve not to re-offend. There was neither running water nor a flushing toilet in the cells. During the critical period the total number of prisoners in C Hall varied between 250 and 270. The respondents made much of the fact that prisoner numbers were outwith their control and depended upon court decisions. On the other hand, there was no indication in the evidence that there was any flexibility within the system to cope with variations in prisoner numbers. For example, there was no evidence to suggest that the number of officers on duty would be increased should the number of prisoners increase or should there be a number of staff absent on account of illness. On the top flat of C Hall, where the petitioner occupied cell no.23, there were up to 80 prisoners, all generally held 2 to a cell, and a general day shift complement of 4 officers. The washing and toilet facilities available were constant. At four separate times in the day groups of prisoners were released from their cells to make use of these facilities, which were located together at one end of each flat in an area known as "the arches". The time available for each group remained more or less constant, whatever the numbers and the circumstances. The opportunities available for exercise and recreation were not increased when the number of prisoners detained was increased. On the contrary, the additional demands made on staff often led to a reduction in the provision of these facilities generally, and to prisoners spending more time in their overcrowded cells. The Scottish Prison Service knew that overcrowding had an adverse effect on both the slopping out arrangements and the regime of the Hall in general.
(c)The Cell
[8]Within the petitioner's cell the impact of overcrowding was pervasive. For most of the period in issue the petitioner shared his cell. Over the period he had three separate cell mates, between 21 and 24 May, 28 May and 4 June, and 9 and 27 June. The cell was a rectangular box, with a vaulted ceiling which was 2.77 m high in the centre. The door, which opened into the cell, was in the centre of one of the short sides of the rectangle. There was a window high on the opposite wall. The rectangle measured 3.98m x 2.13m, giving a total floor area of approximately 8.47m2, a fairly generous area for a single prisoner, having regard to the time...
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