New Appeal: Did prison practice of slopping out amount to inhuman and degrading treatment?

In this determination, Simpson v Governor of Mountjoy Prison & Ors, the Supreme Court granted Simpson leave for a leapfrog appeal from the High Court:

  1. against the High Court’s refusal to make a declaration that the conditions of his detention in Mountjoy Prison amounted to inhuman and degrading treatment; and,
  2. against the High Court’s refusal to grant him an order for damages even though it made a finding that there had been a breach of his constitutional right to privacy and personal dignity.

 

Background

Simpson was an inmate in Mountjoy Prison from February to September 2013. In July 2014 he issued High Court proceedings alleging that the condition of his detention amounted to inhuman and degrading treatment, that the practice of slopping out using a chamber pot in a multi-occupancy cell amounted to a breach of his right to privacy and dignity for his private life as guaranteed by Article 40.3.1 and 40.3.2 of the Constitution and Article 3 of the ECHR, and that the conditions of his detention amounted to a breach of his right to bodily integrity.

The High Court judgment (here) gives a summary of Simpson’s allegations, including:

(7) Due to double cell occupancy the dimensions of the cell breached the recommended minimum of 11sq. meters.

(8) There was no in cell toilet and running water in the cell.

(9) The chamber pot was too small to be used more than twice without being emptied. The Plaintiff had to urinate into empty milk cartons for this reason. He was obliged to defecate into a refuse bag because the chamber pot was too small for defecation. Urine would splash onto his feet and legs and onto the cell floor while urinating and defecating. He had to defecate on a newspaper placed on the floor of the cell.

(10) He had to plead with staff to let him out and was also denied access to the slopping out area as other inmates were using it. He did not have a set time when he was allowed out of his cell and he did not know in advance when he would be released and that he experienced stomach cramps while waiting.

(11) On occasion the Plaintiff was confined in a cell for 30 hours without being let out to the landing or yard. Exercise could be from 9am to 10am, one day, but the Plaintiff would not be released then to the following evening. On some occasions he was only let out for ten minutes to use the toilet. Sometimes he did not have time to slop out when released from lockup so bags and bins would be left in the cell for longer than a day.

(12) The Plaintiff would have to run to and from the toilets and slop out area as prison officers were anxious to speed up the process. The toilets were sometimes filthy and they were frequently blocked. There was usually urine on the ground in the cubicles and the whole toilet area stank terribly. The toilets and urinals were meant to be cleaned by inmates from D2 and D3 but this service was not reliable as the cleaners were usually heavy drug users. Sometimes the toilet area was so dirty that they refused to clean it.

(13) Showering was unpleasant due to atrocious conditions in the toilet and shower area. In June/July 13 the Plaintiff was twelve days without a shower. He could not walk in bare feet in the shower. Wash towels and bed sheets were not changed frequently enough and the Plaintiff used the same towel for a period of weeks for all purposes.

(14) the slopping out regime was very chaotic and the process itself was extremely unhygienic. The Slop hoppers were frequently blocked or were broken and urine and faeces spilled onto the floor. Disinfectant sprays were rarely provided and the Plaintiff had no time to clean pots and buckets properly.

(15) Inmates would on occasion empty chamber pots into sinks or down the shower.

(16) There was bad lighting in the shower and an atrocious smell and green mould in the ceiling. Water leaked from the roof and razor blades could sometimes be found sticking up. Walls were covered in dust and dirt. There were plastic bags and boxer shorts strewn on the floor and the downstairs shower area was filthy.

(17) the ventilation was completely inadequate and there was no air conditioning and little air circulating. It was freezing in winter time and stiflingly hot in summer and there was no window pane in some of the cells and inmates would use cardboard and duvets to block holes. The smell was overpowering when someone defecated and urinated in the cell.

(18) The washing facilities were inadequate, the water was easily contaminated and had to be filled from taps located directly over the slop hopper.

White J refused to make a declaration of inhuman and degrading treatment. He did make a declaration that slopping out in multi-occupancy cells breached Simpson’s right to privacy and personal dignity, but refused to make an award of damages, stating:

456. While the court sympathised with the Plaintiff in his distress about the conditions of his imprisonment which were unacceptable in many respects, he exaggerated the harshness of his conditions of imprisonment and frequently gave untruthful evidence. His credibility was seriously damaged in a fair, methodical cross examination.

457. The Court could not contemplate awarding the Plaintiff damages because of his untruthful and exaggerated evidence.

Simpson applied to the Supreme Court for leave to appeal directly from the High Court. The Court found that Simpson had raised three issues of general public importance:

  1. What are the overall arching principles by which it must be determined whether treatment of a prisoner amounts to inhuman and degrading treatment?
  2. What is the proper approach to weighing the positive and negative factors in reaching that conclusion?
  3. In what circumstances is it appropriate for a court to refuse an order for damages notwithstanding a finding that there has been a breach of constitutional rights?

 

The Court found that it was appropriate to approve a leapfrog appeal as there are potentially 1,600 similar cases, with proceedings commenced in approximately 1,000.

 

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