Slopping-out: taxpayer faces hundreds of new lawsuits

Yesterday, the judges agreed that inmates in three test cases can pursue damages after being subjected to slopping out as long ago as 1999.

The Scottish Government’s argument that the litigations were time-barred was rejected by the judges at the Court of Session.

The ruling paves the way for more than 1,700 other prisoners to submit similar claims.

An average of £2,100 has been paid out in damages in the past, which could take the total cost of new awards to more than £3.5m.

Yesterday politicians reacted angrily to the ruling, with one senior MSP claiming the “public is fed up with their money being used to line the pockets of some of society’s worst offenders”.

Tony Kelly, solicitor for the three men, Stuart Docherty, James Philbin and Paul Logan, said: “The government has breached not some trifling regulation but a fundamental article of the European Convention on Human Rights – not to treat their citizens in an inhuman or degrading fashion.”

However, Scottish Tory justice spokesman John Lamont said that the court’s ruling paved the way for an even greater “monumental waste of public money”.

He said: “The public is fed up with their money being used to line the pockets of some of society’s worst offenders. Today’s news will fuel fears that, far from being over, a raft of new claims will now result. Some estimates suggest more cases could follow, at a cost of millions to the public purse. The incorporation of ECHR into the 1998 Scotland Act, a move backed by all of the other main parties, has resulted in a monumental waste of public money.”

In 2004, a judge ruled in favour of Robert Napier, a prisoner who complained of conditions at Glasgow’s Barlinnie jail, in particular having to use a chamber pot and being forced to empty it each morning. He was awarded £2,450. That led to thousands of other actions and compensation running into many millions of pounds was paid by the Scottish government on behalf of the Scottish Prison Service.

In 2009, in an attempt to block “historical” claims, the government changed the law so that inmates had a year after being exposed to slopping out to raise a damages action.

The change applied only to cases raised subsequently, and did not catch those already in the system, such as yesterday’s test cases. In those, however, the government submitted that they had been raised more than five years after the last occasion on which the prisoner had been forced to slop out, and were therefore time-barred.

Docherty was last held in a shared cell under slopping out conditions in 2000, Philbin in 2002, and Logan in 1999. Their actions were raised as late as 2007.

In a hearing in Glasgow Sheriff Court, the cases were dismissed after a sheriff accepted the government’s contention that they were out of time, applying the five-year limit set by the 1973 Prescription and Limitation (Scotland) Act.

The men appealed to the Court of Session, where their counsel, Simon Collins, maintained that the 1973 act’s time scale did not cover claims under the Scotland Act 1998, which adopted the ECHR into Scots law.

Lord Hamilton, the Lord President, sitting with Lady Smith and Lord Wheatley, said that in 2006, the Scottish Prison Service issued a public statement to acknowledge that, where two prisoners had shared a cell and had to use a chamber pot, their convention rights had been breached and they would, in general, be entitled to compensation.

In spite of the statement, the defences initially put forward by the Scottish ministers in the test cases denied any violation. After the sheriff ruled in their favour, however, they wrote to the men and accepted their rights had been violated, but said they would not receive any damages because the actions were time-barred.

Lord Hamilton said damages paid under the Scotland Act were in a different category from those awarded in general litigation.

“We are satisfied that the sheriff erred in holding that the pursuers’ claims were subject to the quinquennial prescription under the 1973 act. We shall allow the appeal, and remit to the sheriff to proceed.”

Scottish Labour’s shadow justice spokesman, James Kelly, said that the action taken by the Scottish Government had not been “robust enough”.

He said: “Scottish Labour understood that the SNP Government had resolved this issue so that all outstanding cases had been settled and there would be no further legal challenges.”

Meanwhile, the Scottish Prison Service has yet to decide whether to appeal against the latest ruling.

A spokesman said: “We have received the judgment and are considering it. We have already made provision in the accounts to deal with any liabilities.”

A Scottish Government spokesman said the administration had “inherited the situation where prisoners were claiming compensation on human rights grounds”.