Executive must continue fight on slopping out

I doubt if anyone who had any part in framing the terms of the European Convention on Human Rights 50 years ago would have imagined in his wildest dreams that "slopping out" could come to be regarded as a breach of a criminal's human rights. After all, at that time, slopping out was extremely widespread in European prisons. It still is in many of the countries that have signed up to the Convention on Human Rights.

Indeed it was quite common for many years after the war for the ordinary law-abiding citizens of this country, and others, to have to use chamber pots and to slop out in the morning. I know that to be true from personal experience. And during the war, when one was in an underground shelter seeking refuge from the bombing, people had to be prepared to slop out if the bombing raid lasted long enough. Whatever else we thought, we would not have described it as "degrading".

Secondly, the Napier case was quite special on its own facts, in the light of the evidence about the effect of the conditions on the prisoner's eczema. But even standing that evidence, it was arguable that the "treatment" he endured at Barlinnie - the requirement to slop out - was sufficiently serious to amount to a breach of Article 3 of the European Convention on Human Rights. Lord Bonomy (who made the judgment in favour of Napier) himself acknowledged that it was a question of degree.

However, the most remarkable feature of the Napier case was that the Court accepted evidence that the Executive had deliberately decided to spend its limited financial resources on other things, in the light of their judgment as to what the public interest required.

As Lord Bonomy recorded in his judgment, a sum of 13 million that had become available and could have been spent on providing individual lavatories for each cell, had "... been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland's sheriff courts".

The Executive argued to the judge: "Those are proper priorities. Government is about making choices; those are the choices that we have made." That view is surely one that many judges would have accepted as entirely correct. The decision as to how limited public (i.e. taxpayers') funds are to be spent within the criminal justice system is a matter for elected politicians, not for judges. How can it be for judges to decide that spending money on improving toilet facilities for convicted criminals is more important than spending that money on tackling domestic violence or on trying to fight the menace of dangerous drugs?

And finally, the prisoner was awarded damages. Such damages would, of course, be tax-free. The result was that, on a daily basis, the prisoner received in respect of his being "degraded", a compensation payment that exceeded the daily take-home pay of many of the prison staff.

It was thus greatly to be regretted that the Scottish Executive did not present a full appeal and argue the case all the way to the House of Lords - which has tended to take a more robust view of such matters.

Not all cases are identical to the Napier case: the facts are unlikely to be exactly replicated in any other case. Paying 44 million to convicted criminals as compensation for treatment that was standard in European prisons for many, many years, centuries even - instead of allowing the government to decide to use that money to combat domestic violence or drug abuse - is arguably an odd way to vindicate "human rights".

Is it now too late for the Executive to fight the remaining cases in order to seek a ruling that commands public respect?

Lord McCluskey of Churchhill is a retired High Court judge, a former Solicitor-General (1974-1979) and a former chairman of the John Smith Memorial Trust.