Prison ruling paves way for costly claims

Robert Napier, a prison inmate, was awarded 2,450 in damages yesterday after taking the Scottish Executive to court for making him "slop out" during his time in Barlinnie Prison in Glasgow.

In a savage attack on the practice, which was banned in England nine years ago, Lord Bonomy ruled at the Court of Session in Edinburgh that the Executive had breached Napier’s human rights by imposing such a "degrading" and "abhorrent" practice on him.

The judgment is likely to prove embarrassing and expensive for the Executive if, as expected, thousands of other current and former prisoners follow Napier’s lead and go to court over their own treatment.

John Scott, who chairs the Scottish Human Rights Centre, warned the cost to the taxpayer could run into millions as a result of the judgment.

He said: "I’m usually slow to say, ‘This is opening the floodgates’, but potentially this will affect hundreds if not thousands of people and cost millions of pounds."

Despite repeated ministerial pledges to end the practice, there are 1,200 prisoners in five prisons in Scotland who have no access to sanitation in their cells and who have to "slop out" their own waste in communal toilet blocks - 18 per cent of the prison population. Many are short-term prisoners, which means the number who could potentially take the Executive to court will run into the thousands.

Yesterday, Lord Bonomy was particularly severe in his assessment of the failure of Jim Wallace, the Liberal Democrat leader and the former justice minister, to end "slopping-out" when he had the chance in 1999.

The judge said that Mr Wallace’s decision to redirect 13 million from the Scottish Prison Service budget in December 1999 showed that the Executive could "easily have installed integral sanitation in the cells in C Hall before 2001".

Mr Wallace had said at the time: "Government is about making choices; those are the choices that we have made."

Lord Bonomy wrote: "I shall find that [Napier] suffered loss, injury and damage by reason of the fault of the respondents."

Napier said in evidence that during his seven weeks on remand, his cell had no toilet or sink and he was locked up for at least 19 or 20 hours a day.

Prisoners were supplied with a bottle to urinate in and a chamber pot. There were three or four opportunities a day to slop out.

He told the court that there was an agreement between inmates to try to hold off until slopping-out, but twice a cellmate had been unable to wait and used the pot.

"To sit and watch somebody do the toilet ... it’s no nice," said Napier. "I put toilet paper up my nose so I could not smell it. I just hoped I was not sick."

He described slopping-out in the morning as a cavalry charge, and said that the smell in the toilet area as not far off gut-wrenching.

The practice continues in five Scottish prisons, in areas of Barlinnie, Polmont, Perth and Edinburgh jails, and in the whole of Peterhead prison.

Napier’s solicitor, Tony Kelly, is handling about another 300 claims. He said: "I am hoping to let go of the pause button and get cracking with them. For those still in conditions which Lord Bonomy has declared to be unlawful, the first step will be to try to get them transferred out."

Theoretically, every prisoner who has had to "slop out" at any institution since the European Convention on Human Rights was codified into Scots law four years ago could claim damages on the back of Napier’s case.

All they would have to do is claim that they were harmed or damaged in some way by the experience, with most likely to claim they suffered stress and mental distress as a result.

Potentially, prison officers could also make claims as although they do not have to slop out themselves, they have to police the practice and have to operate in the same degrading conditions.

The Executive is expected to appeal against the judgment, which will delay any further claims for compensation and give ministers more time to improve the prisons’ estate.

A spokesman said ministers were considering possible grounds for an appeal.

He added: "We believe that investment should go to modernising prisons, not compensating prisoners. That is why the Executive contested Robert Napier’s claim for damages."

Tommy Sheridan, the leader of the Scottish Socialist Party, experienced slopping-out when he was in Barlinnie and has raised questions on the issue in Parliament.

He said: "It is an utter humiliation, often perpetrated on prisoners who have not been convicted of any crime.

"How can we hope to reform individuals who are treated like animals in the prison system?"