Scottish Human Rights Law Group

The prisoner complained that the cell in which he detained while on remand was grossly inadequate in living space, lighting and ventilation, that the sanitary arrangements involved ‘slopping out’, that the extent to which he was confined in his cell was excessive and that the periods of exercise and recreation outside the cell were inadequate.  An interim injunction was granted ordering the transfer of a prisoner from Barlinnie Prison to a prison which complied with Article 3. 

The case subsequently went to trial and – after consideration of expert evidence and Reports from the European Committee for the Prevention of Torture (CPT) the Lord Ordinary, Lord Bonomy held that the combination of the “triple vices” of cellular and prison hall overcrowding, slopping out and impoverished regime in C Hall of Barlinnie Prison, Glasgow were such as to be capable of constituting in Scotland in 2001 a breach of Article 3.   The conditions, when taken together, were such as to diminish the petitioner’s human dignity and to arouse in him feelings of anxiety, anguish inferiority and humiliation.   It was also held that Article 8 was breached. The detention of the petitioner in the conditions displaying the “triple vices” was held not to be “necessary in a democratic society”   Positive choices had been made by the Scottish Executive in the knowledge that there was an urgent need to address the prison conditions. In 1994 the conditions there were criticised by the Committee for the Prevention of Torture.   Slopping out had generally been abolished in prisons in England and Wales by April 1996. The judge found that the Scottish Ministers could easily have installed integral sanitation in the cells in C Hall before 2001. Funds were available to them for this purpose but these had been allocated elsewhere.    The Scottish Ministers were also found breached their common law duty to take reasonable care for the petitioner’s health and safety in that the stress on the petitioner consequent upon the conditions of his detention was found to have contributed to the resurgence and exacerbation of his pre-existing eczema.   In the circumstances an award of £2,000 plus interest was made to the petitioner to reflect the loss injury and damages sustained by him in the course of the 42 days in which he was detained in the conditions in question.    

The decision of Lord Bonomy was appealed against to the Inner House, ultimately only on the question of the appropriate standard of proof to be applied by domestic courts in Article 3 cases.   The First Division held that “in civil proceedings in Scotland in which a finding is sought from the court that there has been an act or a failure to act by a public authority which is incompatible with the requirements of Article 3 of the European Convention on Human Rights, the appropriate standard of proof is the ordinary standard of proof applicable to civil cases in Scotland, namely, proof on a balance of probabilities.”

A large number of cases were then taken by a large number of former and current prisoners against the Scottish Ministers for damages in respect of their conditions of detention.   The Scottish Ministers sought to argue that al and any such damages claims were subject to the one-year time limit set out in Section 7(5) of the Human Rights Act 1998.     In Somerville v Scottish Ministers  the House of Lords rejected this argument holding that such damages claims in respect of Convention incompatible action on the part of the Scottish Minsters could properly be brought under and in terms of Section 100(3) of the Scotland Act 1998 and were therefore not subject to any statutory time bar under the Human Rights Act 1998.

Full report available here