Slop-out appeal allowed despite blunder

Scottish judge ruling "slopping out" breached human rights earlier in year

Executive decided to appeal fearing rash of actions but missed legal deadline

Executive given more time to appeal after lawyers apologised for delay

Key quote

"Mr Napier has not been prejudiced by the fact there is an appeal. He is getting the damages, and I expect it to be within seven days" - Tony Kelly, solicitor of prisoner involved in action against the Executive

Story in full THE Scottish Executive was yesterday given extra time to appeal after missing a vital deadline in the controversial slopping-out case, which could cost taxpayers millions of pounds in compensation.

Lawyers for the Executive were forced to make an "unreserved" apology to the Court of Session for the failure to lodge the proper legal papers on time.

The Executive had 21 days to challenge Lord Bonomy’s findings in the case of Robert Napier, a former inmate of Barlinnie who won 2,450 damages after claiming his human rights were breached by slopping-out.

However, an "administrative error" meant that court papers were not delivered on time, prompting calls for Cathy Jamieson, the justice minister, to resign.

Yesterday, Lord Cullen, one of three judges hearing the application, described the failure to meet the deadline as "most unfortunate". However, he accepted it was an inadvertent mistake and ruled that the court could use its discretion to allow the appeal to proceed.

Later, it emerged that Mr Napier will receive 2,450 damages, whether or not the appeal against Lord Bonomy’s judgment succeeds.

Mr Napier’s solicitor, Tony Kelly, said the appeal would relate to general issues under the European Convention on Human Rights, and not to the specific failure of the prison authorities to care adequately for his client.

"Mr Napier has not been prejudiced by the fact there is an appeal. He is getting the damages, and I expect it to be within seven days," said Mr Kelly.

Last night, opposition parties demanded a ministerial statement from Ms Jamieson. Bill Aitken, the Tory justice spokesman, said a statement was even more urgent because ministers were lodging a "limited ground" of appeal on human rights findings, not in the common law.

"When is this justice minister actually going to face her responsibilities and come before this house and answer for these responsibilities, as she is manifestly failing to do on so many issues?" he demanded.

Linda Fabiani, the SNP’s deputy business manager, said it was vital that ministers came before parliament to account for mistakes made.

"The Executive must accept responsibility for its actions and those of its civil servants," she said.

However, Patricia Ferguson, the parliamentary business minister, said the Lord Advocate, Colin Boyd, QC, and Ms Jamieson were jointly writing to the conveners of Holyrood’s two justice committees to explain the reasons for the Executive’s failure to lodge the court papers on time.

Earlier, at the Court of Session, it was explained that an attempt had been made to lodge an appeal within the specified time limit, but essential documents were not included in the paperwork.

A clerk did not report the problem, and by the time the mistake was discovered the deadline had been missed.

Neil Brailsford, QC, for the Scottish ministers, told the court: "Can I extend to the court and Mr Napier the apologies, unreservedly, of the Scottish ministers for the unfortunate delay which has come to pass?"

In April, Lord Bonomy ruled in favour of Napier and said he was entitled to compensation. The judge had been told that during about six weeks on remand in Barlinnie’s C Hall in 2001, Mr Napier had been exposed to the "triple vices" of overcrowding, slopping out and up to 20 hours a day locked in his cell.

Lord Bonomy held that Mr Napier had been exposed to conditions of detention which amounted to degrading treatment and breached the ECHR.

Slopping out continues in some Scottish prisons and the judgment was seen as opening the floodgates to hundreds of similar claims, which could leave the Executive facing damages payments running into millions of pounds.