Prison failure leaves taxpayer with £44m bill

THE amount of money earmarked for compensation to Scottish prisoners forced to "slop out" has soared by 70 per cent to £44 million in the past year, it emerged yesterday.

But the final cost could be tens of millions of pounds higher, with ministers yet to agree a plan to completely eradicate the practice in Scottish jails. Taxpayers also face having to pick up legal aid bills, currently running at about 100,000 a month, for prisoners taking slopping out cases to court.

Politicians accused the Scottish Executive of ignoring warnings that slopping out was likely to breach human rights legislation and said ministers were wholly to blame for the huge and growing bill facing taxpayers.

Lord McCluskey, a retired High Court judge, said the original decision to award prisoner Robert Napier 2,450 compensation for slopping out at Barlinnie jail in Glasgow was "remarkable". Writing in The Scotsman today, he said: "I doubt if anyone who had any part in framing the terms of the European Convention on Human Rights [ECHR] 50 years ago would have imagined 'slopping out' could come to be regarded as a breach of a criminal's human rights. At that time, slopping out was wide-spread in European prisons. It still is in many of the countries signed up to the Convention."

The lawyer who handled the landmark Napier case said ministers had failed to confront the issue. Tony Kelly, of Coatbridge-based Taylor & Kelly, said: "This problem is a direct result of decisions made by ministers in the 1990s and post-devolution. They knew slopping out was appalling and risked breaching human rights legislation."

That prospect was first raised in 1990, when the European Convention for the Prevention of Torture said slopping out in English jails was "utterly appalling". That led to a huge improvement programme, ending the practice south of the Border by 1996.

But the same committee visited Barlinnie in 1994 and warned the lack of toilets in cells could be in breach of article three of the ECHR. Slopping out was also fiercely criticised in a 1997 report by the then chief inspector of prisons, Clive Fairweather, and has been routinely condemned by him and his successor, Dr Andrew McLellan.

Mr Kelly said the Executive had to shoulder a large slice of the blame. "In the first post-devolution budget, Jim Wallace, who was justice minister, took millions of pounds out of the pot for prisons and redirected it to drug enforcement," he said. "In 1999, 2000 and 2001, there were numerous debates in parliament on slopping out, and little was done. They knew about this but nothing was done. It's not rocket science."

About 460 prisoners (7 per cent of the total) still have to slop out, mostly at Peterhead jail. Over the past three years, slopping out has ended at Barlinnie, Perth, Edinburgh and Glenochil, but plans have yet to be drawn up to tackle the problem at Peterhead.

The Scottish Prison Service (SPS) made provision in its 2003-4 accounts for 26 million to cover expected claims after the Napier case. That has been raised to 44 million after a new estimate of the SPS's liability arising from a series of cases similar to Napier's, according to the accounts for 2004-5.

An SPS spokesman said the 44 million figure was based on "the best information available" - but he could not rule out the possibility that the final cost would be higher. He said major improvements to prison conditions were reducing the likelihood of countless compensation claims in years to come.

About 640 cases are pending in the sheriff courts, with 150 set for judicial review. According to the latest figures, 432 cases were granted legal aid in the ten months between April 2004 and February this year, with the majority of cases each likely to incur legal fees of between 2,000 and 2,500.

Taxpayers also face paying out millions more in court costs - and Kenny MacAskill, the SNP's justice spokesman, claimed the blame for the bill rested with ministers.

"The Executive was told the costs and was fully aware there was a problem looming over slopping out," he said. "It failed to act even when it had the funds available to rectify the situation. It is unacceptable that because the Executive failed to take action, the price is being met by the Scottish taxpayer."

Margaret Mitchell, the Scottish Tories' justice spokeswoman, said: "We must not forget this was an entirely avoidable fiasco. The original ruling makes it plain [ministers] took a deliberate decision not to address cell conditions when they both had the resources and capacity to do so.

"The withdrawal of 13 million funding in 1999, and delay in ending slopping out from the Tory target date of 1999 to an unspecified time in the future led directly to the compensation ruling and multi-million-pound claims."

Lord McCluskey called on the Executive to fight the remaining cases. He asked: "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? It [is] to be regretted that the Executive did not present a full appeal and argue the case all the way to the House of Lords. Is it now too late for it to fight the remaining cases in order to seek a ruling that commands public respect?"

An Executive spokeswoman said ministers had "directed sustained and substantial increases in resources to the SPS to modernise long-neglected buildings and improve conditions".

She pointed out that slopping out had ended at four prisons since 2003 and said: "The total number of prisoners slopping out is a quarter of what it was just four years ago."