Grant is the leading case, which decided in the High Court, dealing with the compatibility of certain prison conditions, particularly, ‘slopping-out’ with Articles 3 and 8 of the European Convention on Human Rights (ECHR).
Summary of facts:-
Following the decision in Napier v The Scottish Minister , in which the Court of Session in Scotland held that HMP Barlinnie’s condition had breached the prisoner’s Article 3 rights, there have been 360 prisoners or ex-prisoners made their claims regards on the prison sanitation regime at HMP Albany. However, only Mr. Grant’s and Mr. Gleaves’s claims successfully reached the trial.
The prisoners in the HMP Albany were accommodated in single cells without in-cell sanitation. In this case, the focus of the claimants’ complaints is regarded to the ‘slopping-out’, i.e. when they are unable to obtain prompt release form their cells to use the toilets or when the electronic system (which installed on each cell door) is not functioned properly, they had to urinate or defecate into a plastic bucket (with lid) that they emptied and cleaned when next they left the cell. The claimants claimed that the bucket had to be used routinely but the defendant argued that it was only used in exceptional circumstances.
Arguments by the claimants:
The claimant’s two major arguments are that any requirement for a prisoner to urinate or defecate into a bucket is, in itself, degrading treatment and a violation of Article 3. Alternatively, such a requirement was degrading, and a breach of their rights to respect for private life under Article 8, when considered in the context of all of the conditions at the prison, particularly the allegedly inadequate space, light and ventilation in each cell. Mr. Grant also argued that it was especially degrading for Muslim prisoners. Besides, there are some minor arguments, for example, the indirect breach of Article 8 rights, i.e. there was an ‘unacceptable risk’ that the sanitation arrangements at the prison would breach of a prisoner’s Articles 3 and 8 rights, and that risk itself amounted to a breach of Article 8. Finally, Mr. Grant again claimed that his cell space which less than the Council of Europe’s recommendation of six square meters was itself a violation of Article 3.
Decision:
Hickinbottom J dismissed their claims.
Issues:
1. Any requirement for prisoners to slope out is ALWAYS a breach of Article 3.
According to R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions , a domestic court, without any special circumstances, should always follow the clear and consistent jurisprudence of the Strasbourg Court. Hence, is there any clear and consistent line of Strasbourg’s authority regarding this claim?
As a starting point, Hickinbottom J defined the term ‘degrading treatment’,i.e. treatment ‘such as to arouse in their… feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance’ . And, for the treatment to amount to a breach of Article 3, it requires a ‘minimum level of severity’ . In considering whether this requirement is met, the Strasbourg court will always look at all of the relevant circumstances of each case: (i) the intention to degrade, (ii) the fact that the victim is in state detention, and (iii) the degree of suffering or humiliation caused to the victim by the treatment.
(i) is not a prerequisite for a finding of a violation of Article 3 but is nevertheless an important factor to be considered . Besides, the Strasbourg jurisprudence made it clear that to prove a violation of Article 3, the claimants must have to show that the treatment and the prison condition had satisfied the minimum severity test. The test has a high threshold; although the fact that the complainant is vulnerable because in-state detention will often be a significant factor so that, even if treatment would not be humiliating if endured outside the prison, it may well be found to be humiliating and degrading if suffered in a prison context.
Next, the Strasbourg Court will generally look at the positive evidence of suffering, i.e. unless a claimant could show, by direct or inferential evidence, that ill-treatment, in fact caused him serious suffering in terms of physical or psychiatric injury, or psychological harm, or particularly serious evidenced distress, it would be difficult for him in practice to show that such objective ‘minimum severity’ test has been satisfied. Referring to the Strasbourg case, Hickinbottom J especially pointed out that in Malechkov v Bulgaria , the Strasbourg court did not rule that the use of a bucket was itself a breach of Article 3, but that ‘cumulative effects of the unjustifiably stringent regime’ caused distress and hardship that went beyond the threshold of severity for Art 3 purposes. Thus, the court concluded that there is no clear and consistent line of Strasbourg authority and thus a requirement for a prisoner to urinate or defecate into a bucket was NOT NECESSARILY and of itself, degrading and a violation of Article 3. Indeed, whether it is so degrading will depend upon all the circumstances of his case.
2. Is there a breach of Articles 3 or 8 in this particular circumstance of this case?
Concerning this, the judge agreed that the sanitation regime at HMP Albany is not ideal but he emphasized that it does not mean that the defendant intended to lower the dignity of any prisoner. The judge considers first from the Strasbourg cases, where he found out that Grant falls far below the minimum level of severity needed for violation. Reference to Iorgov v Bulgaria (No 2) is sufficient to illustrate the high threshold required and the distance by which these claims fall short of attaining it. The judge also considers some home domestic jurisdictions, especially cases from Northern Ireland, Scotland as well as the Republic of Ireland, and found out that there is no violation of Art 3 even if the prison conditions in these cases are far worse than HMP Albany. Except for Napier, which the judge held that it is easily distinguished from this case as in that case (i) the complainant shared a cell and had to perform toilet functions in front of his cellmate; (ii) the complainant had no access to a flushing toilet overnight; (iii) the conditions of detention caused him to suffer eczema.
Nonetheless, the court found out that in Grant, the defendant had indeed been sensitive to the particular needs of prisoners, for eg the ill. the immobile and those who keep religious observances. The regime obliges prisoners to use a bucket to urinate only rarely, and defecate very rarely. Prisoners do not share a cell, so they do not ever have to do any toilet in front of another person. Prisoners are not obliged, except rarely, to have any waste in their cell for a substantial time. They are given instruction in how to use, empty the bucket: and clean the bucket with proper facilities in the sluice, without significant queuing or jostling, and in uncramped and reasonably unrestrained circumstances. The regime causes no material additional risk to the health of well-being. Given those circumstances, it is obvious that the claimants had suffered no distress or other harm as a result of the regime.
Besides, the judge stressed two points with the dismissal of those claims. First, the claimants failed to prove, on the balance of probabilities that the prison conditions in HMP Albany were so degrading. Second, whilst giving the reports due respect and taking the evidence in them into account, the judge chose to primarily rely upon the direct evidence before him. Inconsistencies between his factual findings and the factual basis of those reports (HMCIP and the IMB) arises because I have been driven by other evidence, specific to the conditions to HMP Albany and the Claimants, to differ from that basis.
The regime did not present any specific difficulties for Muslim prisoners in practicing their religion; at night, they could adequately perform their ablutions before they prayed, either via the electronic door system or in their cells using the washing facilities there. As such, this argument failed as well.
In regards to direct Article 8 claim, based on the findings by the judge, the reasons for dismissed Article 8 can be referred to the same reasoning of failing of Art 3. But, here, the judge in particular notes that there is no real impact on the privacy of the Claimants. The judge has also claimed that none of the Strasbourg cases in which an Art 8 claim has failed, has an Art 8 claim been successful. Referred to the home jurisdiction as well, no breach of Art 8 was found in most of the cases. Except for some cases, such as Napier (cell sharing); Green (the chemical toilets had to be regularly slopped out); Martin (inadequacy of the sluice area). Comparing to these cases, prison condition in HMP Albany does not interfere with the dignity and privacy of the complainants.
3. Minor Claims:-
The indirect Article 8 claim is also rejected because whether the sanitation regime in HMP Albany results in an ‘unacceptable’ risk of a breach of prisoners’ human rights, the legal analysis relied on lacks the basic building blocks for an Art 8 claim. The outcome of the analysis is not logical and defensible. It would equate the risk of an interference with Art 8 rights with an actual interference, thereby effectively eradicating the interference threshold: it would counter-intuitively trump the fundamental question of whether the applicant’s human rights have been violated, render Art 8(2) otiose, result in differing Art 8 rights in England and Wales from other Convention states but would also be inconsistent with many Strasbourg cases.
Finally, the claim that the size of the cell alone breached art 3 failed because neither the recommendations of six square meters under the commentary to the European Prison Rules 2006 nor the recommendations of seven-meter squares by the CPT are mandatory requirements. Besides, Mr. Southey, without a good reason, did not press actively on Rule 18.3 that ‘specific minimum requirements in respect of [floor space] shall be set in National Law’.
Suggestion:
It is not a ‘MUST’ to follow of Strasbourg cases as they have no binding effect. Hence, it does not necessarily require a CLEAR and CONSISTENT line from the Strasbourg authority to prove that any requirement of ‘slopping-out’ is a violation of Article 3. It should be determined by ‘our courts in Britain’. Despite an improvement in other areas of prison law, poor prison conditions, especially, ‘slopping-out’ remain neglected. It seems that the ECHR does not prepare to confront these challenges and thus it is suggested by David Scott that the domestic courts could probably go much further to develop substantive rights jurisprudence.
In the Irish System, the European Committee for the Prevention of torture and inhuman or degrading treatment of punishment strongly condemned the sanitation facilities in some Irish prisons and thus calls upon the eradication of ‘slopping-out’ from the prison system. In 2015 Report, the cases about the sanitation regime dropped dramatically. As such, it can be said that the recommendations in the 2010 report can be justified as much on the grounds of privacy as on preventing inhuman or degrading treatment. Perhaps, it provides a good direction to the domestic court in the UK to improve their sanitation regime in the prisons.
Grant & Anor v The Ministry of Justice [2011] EWHC 3379 (QB)
2019-11-25-1574724840