Slopping-out prisoners 'to sue for £100m'

INMATES and former prisoners from all over Scotland are expected to demand tens of millions of pounds in damages from the taxpayer, following a landmark ruling yesterday on slopping-out.

Three judges decided to throw out an appeal by the Scottish Executive on slopping-out - an appeal which ministers had hoped would prevent a mass of legal challenges against them.

The judgment now means that anybody who has, or previously had, no access to proper in-cell toilet facilities when in custody, and has had to slop-out their cells every morning, has the potential to sue the Executive under the European Convention on Human Rights. It is likely to lead to a high number of cases, with some estimates suggesting the cost could be 100 million or even more.

The Executive’s battle over slopping-out started last year when Robert Napier, an armed robber, claimed that his human rights had been breached by being forced to slop-out at Barlinnie prison in Glasgow. Napier said he had suffered an outbreak of eczema as a result of having no access to a toilet in his cell at night. He won his case and was awarded 2,450.

The Executive then lodged an appeal, arguing that in cases which allege such breaches of the European Convention on Human Rights, the standard of proof should be that of "beyond reasonable doubt".

However, Lord Cullen, the Lord President, sitting with Lords Osborne and Hamilton, ruled that alleged breaches should be dealt with on the normal civil case standard - on the balance of probabilities.

Napier’s lawyer, Tony Kelly, said yesterday he believed the action will soon be followed by others. "There are hundreds of people still undergoing slopping-out, overcrowding and poor regime, and those people will certainly be heartened by today’s judgment," he said. It is understood more than 300 actions have already been raised in the Court of Session and sheriff courts in Scotland, and there are another 1,000 potential cases which could be launched soon.

At First Minister’s Questions, Jack McConnell refused to comment on his administration’s court defeat, saying it could be subject to a fresh appeal.

But David McLetchie, the Scottish Tory leader, told him: "As a result of the court decision, prisoners in our jails are going to be set for multi-million pound compensation payments relative to slopping-out as a result of the disastrous political decisions taken by our First Minister and his deputy back in 1999."

Mr McLetchie referred to part of Lord Bonomy’s original written judgment on the Napier case which dwelt on the Labour-Lib Dem coalition’s decision to reallocate 13 million from the prison service budget in 1999. And he demanded an apology from the First Minister.

Mr McConnell refused to apologise and instead blamed the last Conservative government for failing to provide adequate sanitary facilities.

Afterwards, Kenny MacAskill, for the SNP, said: "A short-term Executive saving has resulted in a long-term public cost. It is the taxpayer who is going to have to pay the price for compensation claims."

It emerged last October that, in the light of the Napier case, the Scottish Prison Service (SPS) included a provision in its accounts for 26 million, for possible liabilities arising since 1999. The SPS disclosed a further contingent liability of 136 million for other cases that may arise.

An Executive spokeswoman stressed the Napier case was not a test case, because every other compensation claim would be treated individually. She said Napier’s case referred to a specific ailment and few other ex-prisoners would be able to use the same argument.