Slopping out regime in prison not in breach of human rights, judge rules

Desmond Grant and Roger Charles Gleaves v Ministry of Justice High Court (Queen’s Bench Division) 19 December 2011 – read judgment

The High Court (Mr Justice Hickinbottom) has today dismissed claims by two prisoners that their rights under Articles 3 and 8 of the European Convention on Human Rights were violated by the prison conditions in which they were detained.

The following is based on the High Court’s summary of the case.

About 360 long term prisoners, who were at HMP Albany between 2004 and 2011, brought claims that their right not to be subjected to inhuman or degrading treatment or punishment under Article 3 and their right to respect for private and life under Article 8  had been violated by the regime under which they were detained in that prison, which included the use of a bucket for toilet purposes when they were in a locked cell and the later emptying of the bucket at a sluice (“slopping out”). Five lead claims were selected, of which two reached trial.

The claimants were accommodated in single occupancy cells. Although each made other complaints, the focus of their claims was upon the prison sanitation regime. All of the HMP Albany claims were made following publicity of the decision in Napier v The Scottish Ministers in April 2004, in which the Court of Session in Scotland held that the conditions at HMP Barlinnie (which included regular slopping out) breached the pursuer’s Article 3 rights.

The claimants at HMP Albany spent 7‐11 hours per day out of their cells – and there was no complaint about the facilities then. However, when they were locked in for periods during the day (routinely for lunch, staff changeovers and roll calls, and sometimes when they were not in work or education or when there were staff shortage), they said that prison officers would not manually open their cell door to enable them to use the toilet facilities, if required.

Their main complaint, however, concerned the night time sanitation regime. There were 24 prisoners on each self‐contained landing. Each cell door had a computer‐controlled electronic locking/unlocking system which operated at night, and which enabled one prisoner per landing to be released at any one time, to use the toilets on each landing. Each prisoner was able to obtain three exits per night, of nine minutes each.

The electronic system was, at times, very unreliable. When the duty governor considered there was a risk of it not working, he was able to call in additional officers for that night who would patrol the landings in turn, and manually open cell doors to allow prisoners to go to the toilet. Prisoners also had the ability to contact duty officers by intercom to ask them manually to release them to use the facilities, but they did not always do so.

Although extent was in issue, it was common ground that, day or night, there would be times when a prisoner was locked in his cell and wished to use a toilet, and his door would not be opened promptly enough for him to use the proper landing facilities. For this eventuality, each cell was provided with a bucket and lid, washing bowl, soap, water and towel. The claimants claimed that the bucket had to be used routinely. The defendant said that there was a need to use the bucket only in exceptional circumstances.

The arguments before the court

The claimants’ case was that any requirement for a prisoner to urinate or defecate into a bucket is, in itself, degrading treatment and a violation of Article 3; but, alternatively, such a requirement was degrading, and a breach of their right to respect for private life under Article 8, when considered in the context of all of the conditions at the prison, particularly the allegedly inadequate space, light and ventilation in each cell. One claimant contended that it was particularly degrading for Muslim prisoners, because of their need ritually to wash before prayers.

Alternatively, it was submitted that, even if the Article 8 rights of the Claimants themselves were not directly breached, there was an unacceptable risk that the sanitation arrangements at the prison would breach of a prisoner’s Article 3 and Article 8 rights; and that risk itself amounted to a breach of their Article 8 rights.

Finally, one claimant claimed that the fact that his cell space was less than the Council of Europe recommendation of six square meters was in itself a violation of Article 3.

The High Court’s judgment

All claims dismissed.

In terms of the facts, Hickinbottom J found that the sanitation regime was not ideal. In particular, although most faults could be quickly remedied, there were times when the night time electronic system was unreliable; and, during night and day, there would be occasions when a prisoner, having made a request, would not be released promptly by an officer. The use of buckets had been criticised by a succession of reports by HM Chief Inspectors of Prisons and Independent Monitoring Boards.

However, during the day, many periods of lock in were routine, and prisoners could regulate themselves so as not to need the toilet during those periods; and, during the night, there were no significant problems when the electronic system was working.

The judge concluded that the system obliged a healthy prisoner to urinate in a bucket only rarely, and to defecate in a bucket very rarely. If a bucket were used, then there would usually be an early opportunity to empty it at a sluice in the toilet recess area (so waste would not remain in the cell for long), and there were proper facilities there to enable him to empty and clean the bucket properly (e.g. a flushing sluice, hot water, brushes, cleaning agents and disinfectant). Prisoners were able to do that in uncramped conditions, without any physical or time pressures. They were instructed both in cell hygiene, and how to use and empty the bucket after use. Whilst he accepted that to urinate or defecate at all in a small locked cell was not optimal, the sanitation regime did not significantly increase risk to the health of prisoners.

He found that, on the evidence, neither claimant used a bucket as often as he alleged: he used it no more than rarely, as described above. Further, he found that the sanitation regime at HMP Albany did not cause either claimant any distress, anxiety, feelings of humiliation or any other harm: indeed, there was no evidence that any prisoner had. Further, neither the claimants nor any other prisoner had made any contemporaneous written complaint about either sanitation regime, in an environment in which such complaints about other aspects of prison life were common.

In relation to the specific grounds, the judge found as follows.

1. Whilst the sanitation regime was not ideal, Article 3 did not require the state to provide an optimal regime, only one which did not degrade prisoners or otherwise offend their human rights.

2. Where the burden of proof in relation to Article 3 fell on a complainant, the standard of proof was balance of probabilities; although, given the seriousness of such allegations, a court may require particularly cogent evidence in order to be satisfied that hurdle was overcome.

3. The size, lighting and ventilation of the cells at HMP Albany did not materially contribute to the claimant’s assertion that the prison conditions were degrading.

4. An obligation imposed by the State on a prisoner to use a bucket to urinate or defecate was not in itself a violation of Article 3. The Strasbourg jurisprudence did not support such a proposition. Whether a prison regime which included such a requirement was a violation depended on all the circumstances, including the effect on the particular prisoner.

5. In all of the circumstances of the conditions at HMP Albany and the two particular claimants, the claimants fell far short of proving a breach of Article 3, even on the balance of probabilities. Particularly important was the absence if any harm resulting from the sanitation arrangements at HMP Albany. The regime was very different from those considered in the Strasbourg cases in which a breach of Article 3 had been found. Napier was distinguishable; in that case, the pursuer shared a cell, and it was found that he suffered physical harm (eczema) as a result of slopping out.

6. The regime did not present any specific difficulties for Muslim prisoners in practising their religion: at night, they could adequately perform their ablutions before they prayed, either via the electronic door system or in their cells using the washing facilities there.

7. Neither was there a breach of Article 8. The regime did not substantively lower the dignity of the prisoners, and their privacy was adequately respected. They did not share a cell, and the regime at the sluice did nothing to disrespect the prisoners’ private life.

8. The indirect Article 8 claim also failed because it lacked the basic building blocks for such a claim, which included, first, proof of a breach of Article 8 and not a mere risk of a breach.

9. Finally, the claim that the size of the cell alone breached Article 3 failed, because the recommendation upon which it was based was just that: a recommendation. It was patently not a mandatory requirement, not a norm for degrading treatment under the Convention.

A full analysis of this decision will follow shortly. 

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