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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Greens & Ors, Re Application for Judicial Review [2011] ScotCS CSOH_79 (12 May 2011)
Cite as: 2011 GWD 15-354, [2011] CSOH 79, [2011] ScotCS CSOH_79, 2011 SLT 549

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[2011] CSOH 79





in the Petition






For Judicial Review


Petitioner: Burns, Q.C., Pirie and Collins; Balfour + Manson LLP (for Taylor and Kelly, Solicitors)

Respondent: Moynihan, Q.C., Drummond; SGLD

12 May 2011

[1] The petitioners in these three cases were all at various times prisoners in the prison of Peterhead. They have all presented petitions for judicial review complaining that the conditions of their incarceration subjected them to inhuman or degrading treatment and were an unjustified interference with their right to respect for their private lives, all contrary to Articles 3 and 8 of the European Convention on Human Rights. They maintain that the actions of the governor and the Scottish Prison Service (SPS) in detaining them in such conditions were unlawful by virtue of section 6(1) of the Human Rights Act 1998 and ultra vires in terms of section 57(2) of the Scotland Act 1998. They each seek declarator to that effect and damages as just satisfaction in terms of together with various ancillary orders. Although there were averments in each petition in support of a common law case, these were not insisted in. Greens and
Wilson also crave in their petitions an order interdicting the respondents from returning them to Convention incompatible conditions of detention.

[2] The primary complaint in each case relates to the sanitary arrangements in place at Peterhead in the single cells occupied by each of the petitioners during their periods of incarceration. Apart from one unit of cells with which these cases are not concerned, no integral sanitation exists at Peterhead and each cell was equipped with a chemical toilet known as a porta potti. The petitioners complain about all the circumstances of use of these items, the lack of hand washing facilities within the cells, and the lack of ventilation. Complaints are also made about the practice of "bombing" by which prisoners defecated into newspapers or other items, or urinated into jars, throwing the end product out of the window. One of the places where such material ended up was a flat roof adjacent to cells on the ground floor of A Hall, one of which was occupied for a time by the petitioner Wilson. Complaints are also made about the size of the cells and the degree of natural or electric light available.

[3] In support of their contentions the petitioners quote extensively from reports of the Council of Europe Committee for Prevention of Torture (CPT), established to strengthen the protection of those deprived of their liberty against treatment of the kind prohibited by article 3, annual reports of Her Majesty's Chief Inspector of Prisons for Scotland (HMCIPS), ministerial statements and consultation documents.

[4] As to the effects on them, each prisoner avers that they felt frustrated, worthless and degraded by the conditions of their incarceration. They suffered a loss of self esteem and claim that their human dignity was diminished by the conditions of detention. They suffered feelings of disgust, humiliation and mental anguish all caused by these conditions which exposed them to distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in a sentence of imprisonment.

[5] These three cases are examples of a considerable number of similar cases - into four figures - raised and sisted in Scottish courts. They were selected by the parties as cases intended to be illustrative of the range of issues raised in the many pending cases. Both parties lodged a note of what they understood by the term "illustrative cases" which had been applied to these petitions from an early stage. The respondents note suggests that they were proceeding on the basis that these cases would be representative of the spectrum of the claims before the court, stating however that "the respondents alone cannot give that assurance to the court". With respect to the respondents I fail to see how they could ever have been operating under such an illusion. The respondents are in every bit as good a position as the petitioners to determine the nature of the cases which are pending before the court. They agreed that these cases should be selected as illustrative in the knowledge that they all related to Peterhead. These cases are all Peterhead single-cell cases and it is difficult to see how they might be thought to be representative of conditions generally in other prisons. As the petitioners' note records these cases may be illustrative of the application of articles 3 and 8 to the conditions of detention at HMP Peterhead during the periods covered by the petitions. To that extent the outcome of these cases may offer guidance in other similar cases. It may be that some of the issues determined in these cases would be the same issues raised in cases in respect of other prisons and so some guidance may also follow in respect of such cases. It was understood and accepted that the court would, where appropriate, indicate the extent to which particular features of these individual cases, for example the "bombing" issue in Wilson's case, may or may not be a determinative factor, and again in such a situation this may offer guidance to the future disposal of such cases.

[6] There was considerable agreement about a number of matters relating to the conditions in which the petitioners were detained. Lengthy joint minutes were entered into in respect of each petitioner reflecting these.

[7] At various times from October 2006 the petitioner Greens has been detained in HMP Peterhead. He occupied cells 3/05 in A Hall, 3/07 in B Hall Annex (BHA) and 3/17, 4/01 and 4/04 in D Hall. Since March 2010 he has been in E Hall where prisoners have access to lavatory facilities. The petitioner Wilson at various times from April 2008 occupied cells 1/19 and 4/05 in A Hall, and 2/07 in BHA. He is currently detained in HMP Dumfries. At various times from October 2005 the petitioner Stanger occupied cells 2/04, 2/18 and 3/22 in B Hall, 1/06 and 3/04 in BHA and 2/06 in C Hall. He was transferred to HMP Inverness prior to being released on 18 May 2010. The configurations of the cells were in each case similar. The location and precise dimensions of each of the cells occupied by each of the prisoners during their time in Peterhead was agreed by joint minute. The type of windows, nature of the lighting, levels of artificial lighting, and the standards for lighting were all agreed as were the fixtures and fittings present in each cell. Prisoners at Peterhead have been and continue to be allowed to have the following items in their cells: a radio cassette/cd player, personal stereo, musical instrument, personal toiletries, photographs, photograph album, curtains, jigsaw puzzles, board games, electronic hand held games, a typewriter, cell hobbies, up to 30 books, up to 20 magazines, up to 7 newspapers, stationery and writing materials, duvet, duvet cover, pillow, pillow slip and sheets. They have also been allowed the following items in their cells: television, DVD player and up to 10 DVDs, mini hi-fi system, games console and up to 10 games, desk lamp, electric typewriter, electric musical instrument, and electric fan.

[8] Various work opportunities are available for prisoners who are each allocated to a work party after induction. The work allocation of the various petitioner during their time in Peterhead was agreed.

[9] Greens was allocated to the cooks' work party from 26 October 2006 to on or around 14 January 2007, the Vocational Training (V.T.) Joiners from 12 February 2007 to on or around 19 August 2007, the V.T. Bricklayers from 20 August 2007 to on or around 3 February 2008, the Garden work party from 7 April 2008 to on or around 18 September 2009, the sanitation work party as a sanitation passman from 19 September 2009 to on or around 7 March 2010 and the V.T Joiners from 8 March 2010 until the present day.

[10] Wilson was employed in the kitchen from 22 April to 21 July 2008; as a passman from 24 July to 15 August 2008 and 20 November 2008 to 3 July 2009; and in the Industrial Cleaners shed from 15 August to 20 November 2008, although the petitioner did not work as an industrial cleaner but took a BCIS course.

[11] Stanger was employed in the rope shed from 15 November 2005 to 24 July 2006, employed in the Vocational Training (V.T.) Bricklayers from 25 September 2006 to 29 June 2007, and employed in the V.T. Joiners from 29 July 2007 to 21 January 2008 and from 10 November 2008 to on or around 12 May 2010.

[12] Various courses are available to prisoners dealing with sexual offending, alcohol awareness and cognitive skills. Greens completed a sex offenders programme and a cognitive skills course and Wilson took a vocational course in PT. Other courses were undertaken as is narrated later in a summary of their evidence. Within the prison there are also many educational opportunities for prisoners including the opportunity to apply for courses through the Open University. Greens undertook classes in numeracy, Wilson in communications, numeracy, art and computing and Stanger in communications and computing. Activities available in the evening include soft toy making, choir practice, meetings of alcoholics anonymous, prison band and field nights. These are at the discretion of staff and may be cancelled because of sick leave or holidays. Each prisoner receives one hour of exercise per day and may in addition have five sessions a week of physical training. Recreation is scheduled during the week for the time between 1845hrs and 2100hrs and at weekends from 0940hrs to 1145hrs and 1400hrs to 1645hrs. Facilities for recreation include snooker, pool, table tennis, darts, dominoes, cards, library and television. The chaplaincy offers services for all denominations. Prisoners receive three meals a day chosen from various menu options and in addition may purchase items from the prison canteen including stationery, newspapers, soft drinks, toiletries, foodstuffs, biscuits, sweets, crisps and tobacco. They have restricted access to a telephone.

[13] The work party grid referring to each petitioner (7/21 of process) was agreed as giving a fairly accurate account of the time spent out of his cell and the activities he was pursuing at the time. However, it was clear from the evidence that there were various errors in this document and where the evidence of the petitioners differed from the document I have preferred their evidence.

[14] The cells in which the petitioners were detained all had in-cell electric power and the petitioners did not have to share with any other prisoners. There was no in-cell sanitation and the cells were supplied with a chemical toilet. They had access to the communal ablutions area before and after mealtimes and during periods of recreation and those who are at work or undertaking education have access to sanitary facilities. Within their cells prisoners had a pump action flask for the purpose of washing hands, a kettle and a basin. Each cell has a spray disinfectant bottle which can be replenished on request.

[15] The chemical toilet consisted of an upper and lower chamber. The lower, the waste section, required the insertion of a bag of chemicals, the "blue bag" as well as a quantity of water to activate the chemicals. The upper section contained a chamber to which water was also added to enable operation of the flush mechanism. A large hole connects the two sections but there is a lever which operates a sliding mechanism by which the bottom section can be closed off from the top. The unit also has a lid.

[16] Until 2007 the regime in Peterhead was that each prisoner was responsible for emptying his own chemical toilet. This was done in the morning twice a week. The chemical toilet would be taken to a sluice in the communal ablutions area of the respective hall - basically a converted lavatory, although possibly slightly bigger - where the prisoners would queue to empty the units. The blue bags were inserted at that stage, sometimes by a passman who may or may not have added a supply of water to the waste chamber to activate the bag. There was some evidence that prisoners were told that one push of the tap produced sufficient water to activate the chemicals. In fact it seems that 2 litres of water is necessary to obtain maximum effectiveness. This appears to have come to notice of staff when plans were being made to introduce a sanitation work party and from then on a measured amount at that level was introduced. From early 2007 the regime was changed with the introduction of a sanitation work party. This consisted of a specialist team of prisoners with training in industrial cleaning who took responsibility for emptying the units of all prisoners who wished to avail themselves of this service. Greens and Stanger experienced both regimes, Wilson only the post 2007 regime. Stanger continued to empty his own chemical toilet for a period of time after the introduction of work parties and Greens did so for 6 to 8 months. Wilson and Greens both became sanitary passmen.

[17] There were outbreaks of Novovirus in HMP Peterhead in February/ March 2005 and May 2006. There has been no recorded outbreak since then.

[18] In addition to the joint minutes referred to above further joint minutes were entered into agreeing various documents in four schedules. The first schedule (38 pages) related to reports of the CPT. The CPT has regard to decision of the European Court of Human Rights (ECtHR) and the Court on occasions has regard to reports of the CPT in determining whether article 3 rights have been infringed. Delegations of independent and impartial experts from a number of member states visit institutions in a member state, submit a draft report to the government of the state and take account of comments from the government in the final published report. It is important to note that when the CPT in any report refer to conditions as "inhuman" or "degrading" they do not mean to declare that such conditions are incompatible with article 3. Their observation are advice to governments that such conditions might constitute an infringement. The CPT standards state that the quality of life in an establishment is of particular importance and this will in turn depend to a large extent on the activities offered to prisoners and the general state of relations between prisoners and staff. Recommendations are made as to cell size, sanitary arrangements and prison regime. It is suggested that:

"Either a toilet facility should be located in cellular accommodation (preferably in a sanitary annex) or means should exist enabling prisoners who need to use a toilet facility to be released from their cells without undue delay at all times (including at night)."

The recommendation is also made that prisons should aim to ensure that prisoners spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Overcrowding, it notes, will lower the overall quality of life in the establishment, perhaps significantly, and the level of overcrowding might be such as to be in itself inhuman or degrading from a physical standpoint. The schedule quotes from reports of the CPT following inspections of prisons in the United Kingdom, as well as the government response to those reports, and quotes from reports of visits to other European countries where slopping out was practised, notably Denmark, Finland and Portugal. In all of the prisons visited except one (Peterhead) the method of slopping out involved the use of a bucket or chamber pot and it is largely in this context that the comments regarding slopping out occur. The document is a lengthy one and I do not propose to quote extensively from it. Three main points emerge: the first is the repeated criticism by the CPT of the process of slopping out; the second is the importance they accord to the totality of a prisoner's experience and the finding of a combination of unsatisfactory features; and the third relates to repeated comments from the United Kingdom Government or the Scottish Executive regarding anticipated dates for ending slopping out, the CPT suggesting that high priority should be given to this. Dealing with these in turn, the CPT records the nature of slopping out with a bucket or chamber pot, and more or less the same comments are repeated whenever it is encountered, viz:

"The CPT considers that the act of discharging human waste, and more particularly of defecating, in a bucket or pot in the presence of one or more other persons, in a confined space used as a living area, is degrading. It is degrading not only for the person using the bucket or pot but also for the person with whom he shares a cell.

The other consequences of the absence of integral sanitation - the hours spent in the presence of buckets or pots containing one's own excreta and that of others and the subsequent slopping out procedure - are scarcely less objectionable. The whole process is extremely humiliating for prisoners. Moreover, slopping out is also debasing for the prison officers who have to supervise it."

[19] As to the combination of unsatisfactory features, the CPT was particularly scathing about C Hall in Barlinnie during its visit there for the 1996 report. Chemical toilets had been introduced into Peterhead in 1994 and so were in use at the time of the 1996 report, under the old system whereby each prisoner emptied his own. The conditions in Peterhead did not meet with the same opprobrium meted out to those in Barlinnie, in respect of which it had been noted that:

"Conditions of detention in C Hall were quite unsatisfactory. The vices of overcrowding, inadequate lavatory facilities and poor regime activities were all to be found there; in addition, many of the cells were in a poor state of repair. As the CPT has already had occasion to make clear in the past, to subject prisoners to such a combination of negative elements amounts, in its view, to inhuman and degrading treatment."

[20] That such a combination amounts in the view of the CPT to inhuman and degrading treatment is repeated in other reports in respect of other establishments. It is worth mentioning at this point that Peterhead was inspected by the CPT at the same time as C Hall Barlinnie, for the 1996 report. The report contains the following comments:

"Material conditions of detention in B, C and D Halls could be described as reasonably good. The cells varied in size between approximately 6 and 7 m and were appropriately furnished (bed, table and chair). The cells did not have integral sanitation but were equipped with portable chemical lavatories, which appeared to function satisfactorily. Prisoners made no complaints to the delegation about these facilities. Artificial light was adequate in all of the cells; however, natural light was rather poor in some cells, notably on the ground floor (level 1) in D Hall, where the windows were particularly small."

[21] It was however noted that some cells were overheated which was exacerbated by the lack of proper ventilation. The CPT suggested these matters be addressed and asked to be informed of any plans for more extensive renovation, including the installation of integral sanitation. The nature of the regime within the prison was considered, with the following conclusions:

"In all of the above-mentioned Halls the prisoners were out of their cells for 14 hours a day, including one hour of outdoor exercise and evening association until 9.30pm. There were employment opportunities in a variety of workshops (rope-making, tailoring and woodwork) and in general services; a total of 164 places being available.

Around 100 prisoners took part in educational programmes, ranging from adult basic education to Open University standard. Prisoners were also encouraged to participate in "life skills" classes and in some cases (e.g. a course in Gaelic), to participate in teaching other prisoners.

The sports facilities for vulnerable prisoners were more than adequate...

In short, the regime offered to prisoners in B,C and D Halls appeared to encompass a varied and potentially challenging range of activities"

[22] Finally, as to the anticipated date for ending slopping out, in 1991 it appears that there was a target date for England and Wales of 1994 and an anticipation that by 1993 over half the prisoners in Scotland would not to have to slop out. The United Kingdom's response to the 1996 report stated that integral sanitation was to be installed at Peterhead in 1997/1998. The 2003 report, which included Barlinne, noted that in 1994 the target for ending slopping out had been understood to be 1999 and that "The CPT has now been informed that it is intended that slopping out will be eradicated by 2007-2008". The Government's response to this was to state that neither the SPS nor ministers had said slopping out would end by 2007, rather it was anticipated that it would end around a year after the opening of two new prisons (Low Moss and Addiewell).

[23] The second schedule (64 pages) contains extracts from Parliamentary and ministerial statements. The SPS launched an Estates review in 2000 and until publication of that in March 2002, questions as to the timescale for ending slopping out were answered on the basis that this was an issue which would be addressed in the Estates review. It is clear from statements throughout that ministers viewed slopping out as, at best, an undesirable practice, which they wished to eliminate. The most trenchant statement came form the then deputy Justice Minister in May 2000 that "The Scottish Executive agrees that slopping out is a degrading practice for prisoners and staff..." The conclusion of the Estates review was that Peterhead should close. Whilst recognising the prison's excellent record of working with sex offenders it considered that the buildings were at the end of their useful life and because of the nature of construction were not amenable to upgrading or adaptation at a realistic cost. This proposal was endorsed by the Justice Minister, who warned that unless Peterhead closed it would not be possible to end slopping out.

[24] It seems from the nature of a debate shortly before this, congratulating the prison at Peterhead for an award achieved for its work with sex offenders, that the conclusion of the Estates Review had been anticipated and that local opposition to the closure was being mobilised. In April 2002 the Scottish Executive published a consultation document on the Future of the Scottish Prison Estate. At that stage closure was still seen as the best option with staff involved in sex offender programmes being deployed to deliver those programmes elsewhere. However subsequently a decision to keep the prison open was announced by the Justice Minister who said that it had been decided it was not a good time to move the sex offenders programmes and that the prison would remain open as the main centre for long term sex offenders. He said that the SPS was discussing an offer from the Prison Officers Association Scotland which would involve a full complement of staff on site to enable prisoners to be escorted to the lavatory during the night. On 2 July the Justice 1 Committee observed that it was "not acceptable that both prisoners and staff have to endure the degrading experience of slopping out and that this should be addressed as a priority". It proposed to obtain a detailed survey to establish the state of the buildings at Peterhead and a risk assessment on the proposal for escorting prisoners from their cells at night.

[25] It is not unfair to say that the Scottish Executive, and later the Scottish Government, decided that the problems within the prison estate should largely be addressed by complete redevelopment across the estate and newly built prisons, rather than upgrading on an ad hoc basis.

[26] The other matters which are discussed in the statements in this schedule relate to the budget of the SPS and the sums allocated to building new prisons. At this stage I merely record two points which were the subject of comment in subsequent evidence. First, that in a statement of May 2000 the then deputy Justice Minister indicated that:

"The SPS had accumulated 23 million from end of the year flexibility. Last year, the Executive reallocated 13 million of that cash surplus to other priorities in the justice programme. From later observations it is clear that this money 'was spent on tackling drugs and drug crime'.

[27] In the year 2000-2001 the yearly underspend was 17 million which was allocated to the capital building programme.

[28] The third shcedule agrees the contents of reports by Her Majesty's Chief Inspector of Prisons for Scotland (HMCIPS) for various years from 2000-2009 and reports of the Scottish Prisons Complaints Commission from 2003-2007.

[29] The final schedule quotes from annual reports of the SPS from 2000-2009.

[30] Evidence was given by the three petitioners, a number of prison officers and several expert witnesses. It was agreed that the reports of the skilled witnesses, subject to competency and relevancy, should be deemed to have been read into the evidence notwithstanding that parts of them might not be spoken to during the course of evidence. As it happened there was a fair bit of evidence in chief for each of the skilled witnesses, although this agreement no doubt enabled that process to be carried out more expeditiously. However, in writing this opinion I have re-read and taken account of not only the evidence given by the witnesses but the reports which they wrote.

[31] The petitioner Greens is 33 and was sentenced to 10 years imprisonment in April 2006 for the crime of rape. He had been on remand in Saughton and his sentence was backdated to 2005. He was sent to Peterhead in October 2006 and said that on arrival in BHA he was not given any induction regarding use of the chemical toilet. He was given a photocopied sheet with some diagrammatic representations on it but otherwise another prisoner ended up showing him how to use it. The cell he was given was filthy when he arrived and he was given a disgusting chemical toilet which was brown and badly stained. He was given a replacement when moved to D Hall.

[32] He felt that "it wasn't right" having to use a chemical toilet in the cell. Anyone could look through the spyhole. He would cover up the spyhole to use the unit. Staff would bang on the door and tell him to remove it or he would be placed on report. If he told them he was using the chemical toilet, some were fine and said remove it when you are finished, others did not believe it. Some staff knocked before they came in, others would barge in. He had not been caught out that way but kept a towel to hand to cover himself in case it happened. The staff would unblock the spyhole during security checks and he would have to block it again.

[33] His other concerns related to emptying the chemical toilet and not being able to wash his hands after using it. When taking the unit to slop out in the ablutions area he said he would be walking over faeces and urine on the floor and residue from the blue bags would be all over the floor tiles. He realised he had to do it but got angry and wanted to throw the chemical toilet. He also felt that people were laughing at him and making remarks, both prisoners and staff. During the week he tried to go to the toilet before lock up but did not always manage. He probably had to defecate into the unit once a week or a fortnight, and had to use it more at weekends. He was embarrassed having to use it in his cell and concerned about people coming in to the cell after he had used it. When he was locked in his cell he could smell it. The smell was quite sickening and would sometimes make him retch. It would disappear after 5 to10 minutes. Shutting the lid made no difference since the seals stretch with time. He agreed he could get a replacement if this happened. It was horrible when there was a smell especially when he was trying to sleep.

[34] He had removed extra panes from the windows in cells to try to improve ventilation and diminish the smell but this was no good unless it was a windy day. He described a look of disgust on the faces of staff who came into the cell after he had been using the unit. He could see their facial reaction and they would cover their faces. He said that it was like walking into a wall of excrement (although his actual description was somewhat more graphic). He stood by that description as accurate throughout his whole time in the prison both before and after the introduction of sanitation work parties. There was no smell when the unit was returned to the cell after cleaning. The smell also reduced when the aperture was covered and the lid closed.

[35] He felt ashamed and let down by the system, "really ashamed and dirty and frustrated" and wanted to explode at times. When he first arrived he was not given a blue bag nor was he told how to deal with slopping out. He had a pump flask for keeping boiling water to wash his hands but felt that after using it once he could not use it again as it was now contaminated by his touching it. He had an 8 litre laundry bucket. He described the regime as having an emotional effect on him. He has cried, thinking that in this day and age such a system should not be necessary. He got angry and would have had a fight with anybody. He described headaches or migraines which started when he was in D Hall. He tried to ignore them and said in chief that he thought it was from all the cannabis he had been using. He had come from heavy use to none at all. In cross examination however he made a distinct effort to blame the headaches on the conditions in the cell. He agreed that he had been under stress from undergoing a divorce and concerns regarding the safety of his children. He had also had a couple of fits when in prison and had undergone testing to see whether he had epilepsy.

[36] On slopping out day someone would shout "ports pottis" as the signal to start the procedure. When he was in BHA he had to walk through B Hall to do it. There would be one emptying, one cleaning and others waiting. At one point he said there would be 3-4 prisoners waiting, at another time he said "loads" but this might be explained by the fact that the arrangements seem to have differed somewhat between BHA and D Hall. In the queue the smell was "horrendous. It was disgusting." He would put his unit down and move across to try to get his face to a window. He said all the prisoners would cover their faces. Staff would cover their faces with a jumper or hide in offices on the bottom floor. He agreed there would be no smell coming from the unit when it was returned to the cell after slopping out. If you had been at work when the work party slopped out you could smell it when got back to hall. The deodoriser machines had no real effect nor did the swing doors as they were left open during the process. Staff would open doors and fire exits to disperse the smell. If you had lunch in hall on the slopping out day the atmosphere was not good. The smell was still as bad as ever during slopping out, notwithstanding that the correct concentration of water is now used. There would be spillages around the floor area and on the outside of the sluice. The process was to put the blue bag in and push the tap once for water. During slopping out his clothes would get splashed and he would change them after. Under the old system people would fall over themselves to get in first. Only the ablutions area on one side of the hall was used and people were supposed to come along one way and back another to minimise jostling but that did not always happen. The old regime made him embarrassed and he could not look people in the eye. It was embarrassing and downgrading and made him feel small. He thought prisoners and staff were laughing at him but did say that he was probably just paranoid.

[37] When the sanitation work party was first introduced he initially continued to empty his own. It was slightly better then because fewer people were doing it but since it cut into recreation time it was not popular. He then used the services of the sanitation work party but felt that the standard of cleanliness was inadequate so changed back to doing it himself. Subsequently the make up of the work party changed and he felt they could be trusted to do it properly so he reverted to using their services. He himself became a sanitation passman in about September 2009. It was a way of making sure his own porta potti was kept clean. He did not clean other porta potties on the work party as he was not brave enough. He performed another role and watched to make sure the others were cleaning them properly. He was given protective equipment and clothing: overalls, hat gloves, visor, paper mask.

[38] In D Hall if he got space at a table he would eat there. He got a table at least 3-4 times a week. It was first come first served and there were small groups of prisoners who sat together. He did not like eating in his cell knowing the unit was behind him. Sometimes he did not eat his meal at all. In A Hall there were more tables so there he ate more meals at the table than in his cell. It was rumoured that prisoners currently in E Hall might be transferred back to D Hall. It had been a major boost to him to be placed in E Hall and the prospect of returning to D Hall makes him angry. He feels everything he has worked for has been for nothing. His concerns about returning to D Hall centred on having to use a chemical toilet again.

[39] On the issue of "bombing", he had experienced problems with people throwing urine from above. He had to throw out a pint of milk which was ruined by urine coming onto the window ledge but it never came inside his cell. He was quite high up so he could not smell anything from it.

[40] Cells in BHA were cramped. Those in D Hall were slightly bigger but still cramped. The unit was at the end of the bed, he never got away from it. In BHA the natural light was not good. There was a high window and the light was high on the ceiling. However, he had a lamp which he bought himself. He also had a tv, a hi-fi, a playstation 2 and photographs of his children in his cell. Ventilation was poor and there would be no air in the cells unless it was windy. Prisoners could ask to be transferred to other cells, although this was not always granted. He asked for, and was granted, a transfer to a cell with a sea view. He is someone who prizes his privacy.

[41] The routine was that cells were generally unlocked about 0800hrs. He would wash and brush his teeth first and then either have breakfast or empty his porta potti under the old regime. Within 3 weeks of his arrival he had started to work in the kitchen. He worked from about 0900hrs until 1145hrs then had lunch in the kitchen. He would then work until 1645hrs, having his evening meal before returning to hall, where there would be lock up from 1730hrs for about an hour. The cells would then be unlocked for recreation. Work in the kitchen was never cancelled. He was off twice a week for either the whole or half a day. He started work in the joinery shop in February 2007 and in bricklaying in August of that year until the following April. Each day there was an hour of PT. For about a year he undertook literacy training one afternoon a week. He joined the garden party in April 2008. In the July of that year the garden party was frequently cancelled because of the retirement of the prison officer in charge. He left the garden work party in September 2009 when he joined the sanitation work party. He also took courses on alcohol abuse as well as sex offenders courses and courses on anger management, drug awareness, book-keeping and relationships. He got a city and guilds in bricklaying and a joinery qualification during which he learned about construction sites, laying floors, joists and basic carpentry skills. On release he hopes to go to college to finish his joinery training. Sex offenders courses were hard work and hard to talk about.

[42] He was proud of the fact that he was trained as a Samaritan and was able to help others in the prison through this.

[43] Wilson was 26 years old. He was serving a six and a half year sentence for rape and had come to Peterhead in April 2008 from Barlinnie where there is in-cell plumbing. He was given a second-hand chemical toilet which was "cleanish". He was given a blue bucket with lid on but had to ask for a brush and other stuff, including materials to clean the cell. He liked to keep it clean; some people say he has "an OCD for cleaning". He had a pump action flask but was told it was for making tea at night. He only had the bucket for cleaning his hands. He did not think the pump action flask, which contained warm water, could be used for hand washing because once he touched the lid it would be contaminated. He had a kettle. His family brought him clothes, photographs and a ghetto blaster for his cell. He was given no induction in the use of the chemical toilet. He was told by a passman to fill the top bit with water. The prison gave him a diagram showing how to empty it but no one explained it. He had no instruction from prison staff. He thought having to use a chemical toilet was disgusting. Because it is in the cell one cannot get away from the smell of it. "A dog can do its business and get away from it: we can't". He tried to keep the unit as far away as possible. When he was at work or when not locked in his cell he was free to go to the lavatory in the ablutions area. If locked in his cell during the day he could ring a bell to ask for access but this did not really happen as there were not enough staff. They were never allowed out at night.

[44] A passman told him to take the cap off and fill it with water. The unit would be emptied Monday and Thursday and would then be filled with water. The passmen were supposed to clean it but they did not do it properly. When they get it they clean the bottom bit and put a blue bag in. Sometimes you got a blue bag and water, sometimes just a blue bag. He tried not to use the unit in the evenings during the week but sometimes he had to. Generally he tried to use the ablutions toilet before lock up. He did not want to use the chemical toilet which he found disgusting. He had to defecate in it at the weekend. On cleaning days the units would be put outside the cells. When you walked through the hall to work at this time there was no smell in the hall but on return you could smell it before you got there.

[45] Sometimes the flush did not clear the excrement and the smell lingered. The smell was worse when the unit was open but he could also smell it when shut. The smell could be there hours later and when he lifted the lid again to use it the smell made him feel sick. His understanding was that the chemicals in the blue bag broke down the waste but did not make a difference to the smell. Sometimes he would not eat dinner the smell was so bad. The smell from the unit was "unbearable" most of the time. He did not get immune to it as some people did. The ventilation was not good in any of the cells and did not disperse the smell which he said could still be there hours later. There was not a lot of space but that did not bother him as he knew he could get out and stretch his legs. He could not get away from the unit. Having to use a chemical toilet made him feel dirty and downgraded. He had to be sick in it a couple of times and that was the worst thing. It was not possible to wash his hands properly, once the water in the bucket had been used once he could not use it again. He was scared to touch anything as it would end up being contaminated.

[46] He became a member of the sanitation work party because then he could make sure his own porta potti was kept clean. He described the practice. Once the other prisoners had gone to work:

"you get on boiler suit and ppe-gloves, goggles, mask, and collect each porta-potti, one at a time. You put all the chemicals you are using in the toilet. You lift up the porta-potti and carry it to the toilet. They are pretty heavy some of them and some people use trolleys but I did not find that any use. I was just lifting them and taking them to the toilet to clean them."

Stuff was sloshing about but never spilled out.

[47] Generally officers gave some leeway about temporarily blocking spyholes to enable prisoners some privacy to use the chemical toilet, but if people forgot to unblock it they were warned and told that if they did it again they would be on report. He felt agitated and nervous in case anyone came in. If officers came when the chemical toilet was in use they would say "we'll come back in a second".

[48] When the units were being emptied the smell went throughout the hall. Sometimes they used a "fogger" (a machine which seems to have been devised to reduce or mask the smell) but it did not work. Sometimes staff reacted to the smell and would say "the smell is really bad put the fogger on". The worst smell was when the potties were emptied into the sluice and proper use of chemicals has not changed that in his opinion. The smell was still the same after the change in regime when water was added in the correct quantities.

[49] His first cell in A Hall was just about 11 inches above the flat roof onto which parcels of excrement or urine would be thrown by prisoners. The contents could come in the window or bounce off it. He said that urine and bits of excrement had come in the window and he had urine "running down the walls". In chief and cross the way he spoke about this gave the impression that it was something which, if it did not happen often, at least happened regularly. In cross examination he referred to "drizzles" of urine coming in. In re-examination he was asked if it happened regularly and he then said he would not say it happened regularly but a couple of times. He said he complained about it verbally to named officers who were not on either of the lists of witnesses. He made no official complaint about it although he knew how to do so. He could not understand why people did not avail themselves of the opportunity to use hall facilities before lock up. When bombs were dropped they could be lying there 2-3 days as the roof was only cleaned once a week. There were always seagulls at the window. He did not have the same problems in other cells, only the odd seagull. He was in that cell for about two and a half months.

[50] In BHA the lighting was not good. The windows were small. He could read during the day if put he put the light on. The electric light helped a good bit. He used the desk to write letters. In cells on the ground floor there was less natural light. He did not have his own lamp at first so would have to keep the big light on to read in bed which was awkward. It was easy to read in bed in A Hall but not when it was dark outside.

[51] The general routine was that cells would be unlocked between 0730hrs and 0745hrs when prisoners would take down their washing and could use the ablutions. They would collect breakfast and eat in their cells. In BHA the only option was the cell as there were no tables. Eventually tables were introduced but there were not enough of them. He did not sit there as he was not comfortable with the people. There was a clique especially of older prisoners. He did not know them and preferred to mix with people of his own age. He felt he should not have been in Peterhead with sex offenders because he was not guilty of the crime of which he was convicted. In his mind being in Peterhead associated him with a crime he did not commit. "Basically I chose to eat in my cell". In his cell he had his TV and his own possessions around him. In any event there were not enough tables or chairs in A Hall either. Later when he was on the top flat he got to know people and so would eat more in hall. There was a smell in the hall even when you collected the food and sometimes it made him not want to eat his dinner.

[52] Work parties left about 0830hrs and returned about 1200hrs. The porta potties were emptied after the work parties had left. At 1300hrs prisoners chose whether to go for exercise or not for an hour in the yard. If there were enough staff those who did not go for exercise would have an hour's recreation otherwise they would be in lock up. Afternoon work parties were from 1430hrs to 1700hrs. Sometimes he had the afternoon off in which case he would be in his cell. Kitchen work parties were never cancelled. On returning after work prisoners were locked up until about 1830hrs when they were unlocked for recreation. Final lock up was about 2100hrs.

[53] At weekend cells were opened shortly after 0730hrs for breakfast. Prisoners had an opportunity for exercise after lunch. Cells were open until after exercise then locked up for staff breaks from 1245hrs to 1400hrs. Doors were then opened and prisoners might go to see visitors. He had no complaints about the visits regime. Lock up for the night would be about 1700hrs. He did not often visit other prisoners' cells. He liked his own time and space. People would sometimes come into his cell but not for long - they would just be in and out.

[54] He had arrived in Peterhead on 10 April 2008 and worked in the kitchens from 22 April until 21 July that year, when he was sacked since it was considered that he was not committed to the work. He worked in the industrial cleaners from 15 August. Industrial cleaning was sometimes cancelled if there were not enough staff, sometimes for a whole week. Because he had done a previous course in Industrial Cleaning he could become a passman in November 2008 with responsibility to keep the landings and bin areas clean. He also took a BICS I qualification and joined the sanitation work party about 2 months before he went to Dumfries. He seems to have been on the work party from about January 2009. Only BICS qualified men are eligible for the work party. He applied to be on it and was informed a few days later that his application had been successful. The top wage for sanitation passmen was 12.60 with an extra 2 for cleaning spillages. The basic wage in the prison was 4.80 per day and the rate for the cooks was the highest. Hall and sanitation passmen were allowed to have their cells unlocked during the day even when they were not working. From about the end of April 2008 on some days instead of working he had education classes in art, maths and English. On Monday afternoons he had PT for about 45 minutes before returning to work. He had no difficulty getting into classes or getting onto work parties.

[55] Stanger was 42 years of age, a former fisherman, and was sentenced to 8 years imprisonment for rape in October 2005 when he was sent to Peterhead, having been remanded in Inverness where there were in-cell sanitary facilities. From about April 2008 he spent about 9 months in Dumfries before being returned to Peterhead. In his cell in Peterhead he had kettle a basin and a bucket. For hand washing he had a pump flask. Originally he had to use that to keep water for his kettle also because he had no method of water storage until he started to use empty lemonade bottles. On arrival at Peterhead he got an induction course in how to use the chemical toilet from one of the training officers. He was told about how to use the unit, washing hands and general hygiene. He was given written information also. He had never used one before and could not believe they were in use in this day and age. He tried not to use it "I just felt dirty. It was unhygienic." There was spray on the seat when the unit was used for urination and this had to be wiped up. He tried to avoid using it to defecate but he did start to use it, especially at weekends although he did not like doing it. A smell came up every time he opened it up. The smell would eventually go away if he closed it but even when he opened only the top lid there was a smell every time. When you returned from work you could smell it when you came in the door. It was not as bad as when the unit was open. The smell of the whole thing was just a vile smell. With the lid down and stopper over the smell would fade. After use he used to boil the kettle, put hot water in the basin and wash his hands. If this was close to emptying time he could put the waste water in the unit otherwise it sat there until the next day. He never much went into other people's cells but in some of them you could smell the smell from a distance.

[56] He was told by a PO that he could block the spy hole when using the unit but he did not feel good about it in case someone came in. Once someone did come in when he was urinating.

[57] When cleaning the unit a blue bag was supposed to be put in bottom section. Occasionally there would be none left. He was told at induction to put water in for the flushing mechanism and in the waste tank with the blue bags. When he first did it they had to put the blue bag in themselves but later on someone handed them out. They were emptied twice a week but you could ask to do it at other times if necessary and that was done at about 1830hrs. Once he was ill with sickness and diarrhoea and his porta potti was emptied more often.

[58] He had his meals in his cell. He went to a table once but it was first come first served and not enough room for everybody so he did not go. Some people made a point of getting there first and it was not worth getting into an argument. The same people always used the tables and if someone took one of their seats there would be an argument so it was not worth bothering about. A lot of people would go back to their cell just to watch the tv. He got a table a couple of times but not again so he continued to use his cell. If places had been available he would have used a table. In C Hall there were not enough places for people either. He was aware of the presence of the chemical toilet when eating but he had no option. He would have his door open for ventilation and bought a fan. His appetite was not affected.

[59] If he got to the ablutions area first for slopping out it was fine, but after that it was revolting when people had been there before him. He had to put his tee shirt up to his nose. There would be 6 or 7 waiting on each landing, and many more in B Hall. Some prisoners always got there first. The process had to be done before getting to the sheds and prison officers would be hurrying people along. When the contents are poured into the sluice they spurt over and there would be splashes in the surrounding area. Occasionally he would get splashes on his clothes but would have to continue wearing them if his other clothes were in the wash. The floor would not be bad but he would be able to see urine there. They only got any kind of PPE, such as aprons, shortly before the regime changed. People would not be showering and shaving at this point, most would get that done before slopping out. Some landings had two ablutions areas but only one would be used for the slopping out process. Staff were usually at the computer during slopping out. Eventually they came to make sure prisoners were given a blue bag. He saw from the reaction on their faces they were feeling the same about the smell. He would sometimes hear a comment regarding the smell, for example, "what have you been eating". On Mondays the halls would still be smelling at 0900hrs and sometimes it was still possible to smell it when returning after lunch. There was no noticeable improvement from the fogger unless you were within 20 or 30 feet of it.

[60] Slopping out was a hundred times worse than when he was an engineer on a fishing boat and had to clean out the bilges. It was worse than the smell of fish guts. He felt dirty having to do it. It "put me on a downer", he was depressed at the thought of it, about being in the queue, about who was going to be there before him, how many, and about the smell of it. In the morning he would sit waiting, thinking how long will it be before they unlock in order to decide whether to use it or whether he could wait. He thought the officers did not like it either from their reaction. They would put their hands up to their noses. He painted a lot to keep his mind off it and he also worked every day which kept his mind off it.

[61] When the new system was introduced he continued to empty his own for a few weeks because he was told that they were not being cleaned properly and he wanted to see for himself. People were complaining about the extra lock up when he was emptying his own, and he also realised that they were being cleaned properly so he let the work party do it. In B Hall it was fine but in C Hall the top section was never done. The smell was not so bad after the regime change but you could still smell it when you returned to the hall. When locked up during the day it was possible to press a buzzer to ask to use the toilet. The staff were not very happy about it but allowed it. Every time he asked he was allowed.

[62] In his cell in BHA there was not much light so he bought a lamp. Without the lamp he could have read in bed but it would not have been good. The natural light was not enough to read by during the day. The lighting in cells generally was poor. Of the cells he occupied in BH, 204 was dull, having two small windows. Ventilation was poor and it got really hot in winter from the heating pipes. In one of the cells in BHA there was a smell in the morning from the "bombing", which tended to happen at night and sometimes he had to get up and close the window quickly to prevent urine dripping in. The cells were cramped. In his he had a TV, DVD, electric piano keyboard, a typewriter, a stereo and his painting equipment. He thought only B 2/04 was really adequate for his purposes.

[63] His evidence as to the daily routine was similar to that of the other petitioners. From about 1245hrs to 1350hrs prisoners were allowed recreation if they were not taking part in exercise. If the prison was short staffed they could be locked in their cells instead but this was fairly unusual. On Friday afternoons they were locked up for the whole of the afternoon if not working. After lock up at the weekend he would paint or play his keyboard until about 0130hrs to keep his mind off things. He also often painted in the evenings during the week, depending on what was on TV, or played his piano. He had never painted before being in prison. Working every day also kept his mind off things.

[64] He worked in the rope shed from 15 November 2005 until 24 July 2006. He worked there morning and afternoon but sometimes the prisoners would return early, especially on a Thursday when staff had a meeting. Sometimes the work would be cancelled if prison officers were on holiday. About three quarters of the time he would be working. From 25 July 2006 to September 2006 he was a groundsman, when work was sometimes cancelled because of the weather. He was in bricklaying from 25 September 2006 to 29 June 2007 and joinery from June or July 2007 until 21 January 2008. He never had difficulty getting on to a work party. He did a three month computer course which was in the mornings and during that he only worked in the rope shed in the afternoons. Briefly he did an art course but stopped because he was not allowed to sit a higher. Classes were only cancelled perhaps once. After lock up he would watch TV, paint or play music. He completed three 10k runs when in PH. He liked to keep fit and did PT training when he could.

[65] In April 2008 he was moved to Dumfries (he had an appeal pending and was not doing any of the sex offenders courses so did not need to be in Peterhead). Dumfries does have internal sanitation but after a while he asked to be moved back to Aberdeen or Peterhead. By that time he had already raised these proceedings and although he did not think much of having to use chemical toilets again his family were in the North and this made it easier to visit, so there were advantages.

[66] Martin Milne, a prison officer called for the defenders had been in the prison service since 1991 most of it in Peterhead. He was currently a business improvements manager. From April 2009 to August 2010 that he was a residential unit manager and before that for three years had been a multi-agency liaison officer. From April 2003 to January 2006 he was residential hall manager in B Hall. At that time, before prisoners were allocated to a hall they were first placed in BHA for a period to enable staff to provide an induction about all aspects of prison life including the use of the chemical toilet. On admission prisoners would be provided with a written and pictorial information pack about how to use it and would also be given a demo of how to use and clean it. A pump action flask for warm water for handwashing purposes during lock up was provided to each prisoner. Prisoners now have kettles in their cells but before the introduction of these they were also provided with a flask of hot water for drinks. The current demo is somewhat more detailed than it was formerly. He has not personally been involved in the induction process nor has he seen instruction being given to prisoners. During a review by a Focus Inquiry Group (FIG) it was noted that few prison officers were aware of the proper process for using a chemical toilet. At that time only those involved in the induction process would have received instruction. Now all staff are trained in this. There is generally free movement between BHA and B Hall but each area slops out within their own unit. During slopping out only one of the two ablutions areas on the landing would be used at one time to maintain access to ablutions for those getting ready for work. Not everyone slopped out every period. Before 2006 (when he ceased to be a hall manager) there would be 2 -3 waiting in the gallery to go in and at any one time there would be one person at the sluice area. Prisoners tend to have set routines: some will always be first, others know there is still plenty time and will wait nearer the end. He had never seen 17 prisoners in a queue for the sluice. There was always sufficient time for the process, if there had not been he would have required to address this. Only one ablutions area would be used so that the other one could be used by prisoners for washing, brushing teeth and so on. The gallery officer is there to monitor the process and he could not do so if hiding away in the office which was not something the witness had seen happen. By the time he returned to the residential function in 2009 the change over to a sanitation work party had been.

[67] Unfortunately this witness had very little sense of smell so he was not able to assist the court very much on this matter. He had heard people comment about there being a smell at slopping out and in the summer the fire doors were opened during the process to dissipate the smell. The doors would be opened just before commencement and closed about half an hour after the conclusion of the process. The smell at slopping out time was worse than at other times. The use of sanitation work parties seems to have had a beneficial effect so far as the smell is concerned as he recalls a new CEO being shown the process close up and commenting on how little smell there was. He thought the present system did not produce much smell. The use of the proper amount of water seems to have reduced the smell and in recent times it has not been necessary to open the doors. The fogger has not been used since his return to residential management. He accepted that the fogger must have been purchased with the intention of reducing the smell. He had never seen staff cover their faces. He thought it would be harsh to describe the present system as "awful" but agreed that ending slopping out would improve staff morale. Spillages were not frequent but did happen, the main problem being people pouring too quickly. Any spillage would be washed away with water from the ablutions area once that person had finished. If a major spillage occurred, such as the dropping of a toilet, the area would be cordoned off and cleaned by an appropriately qualified individual.

[68] Before January 2006 there were not enough tables and chairs for all prisoners to eat at. There is limited demand for prisoners to eat outside their cells and the tables and chairs provided are not used to their full potential. In January 2010 there were facilities for 50% of prisoners but only a 25% uptake. Many prisoners seemed to prefer to eat in their cells where they could watch TV. After night time lock up and during patrol (for example the 1730hrs lock up, and Friday afternoons) prisoners were not allowed out of their cells to use the toilet. During other periods of lock up prisoners could ask to be let out for this purpose and if there were enough staff on this would be allowed. Now there is an open door policy during these periods and prisoners are not locked in. They are not allowed to mix but they can leave their cells to visit the ablutions area. Although the FIG report of September 2007 suggested that during a 2007 open door pilot scheme suggested that the operation of this had been difficult because of staff shortages, Mr Milne said that there had since been fewer shortages and the scheme had operated more consistently, although he could not guarantee that it would be available every day.

[69] If a prison officer saw that a spy hole was blocked he would ask for it to be cleared but if the prisoner said that he was using the toilet he would be allowed a period of grace and the officer would return in 5 minutes to make sure that it was unblocked. Spyholes are there as a security measure and normally blocking one would result in a disciplinary report but since 2006 the practice has been promoted of allowing it briefly for this purpose to safeguard the prisoners' dignity. It was quite a challenging job in B Hall when he was there before January 2006 since they had a number of men who had refused to accept that they had committed an offence or address why they were in prison but overall the staff prisoner relationship was good and quite positive.

[70] The practice of "bombing" occurs across the prison, the main problem being with excrement. At one stage the "bombs" were cleared daily by a work party of prisoners. This area is now cleared twice a week by staff from the estates department, he was aware of some discussion to the effect that it was no longer necessary to do it every day but he was unsure about the rationale for this. For security reasons it was determined to be unsafe to allow prisoners access to the flat roof at A Hall so it has been handed over to the estates department.

[71] The respondents' witness, Albert Wemyss, is currently life liaison officer at Peterhead and has spent most of his 25 years service in Peterhead. In 2005 he was residential manager in BHA, unit manager briefly in 2006 and compliance manager in 2007, responsible for ensuring that standards were met throughout the prison. He had started in the service as a prison officer, becoming a senior officer in 1993 and a manager in 1994. Throughout his service he had considerable experience within the halls and even as compliance manager it was part of his day to day duties to go though the halls to check that appropriate standards were being met. He was a member of staff in Peterhead when they made the transition to chemical toilets from chamber pots in about 1994. It was "like day and night". He described the use of chamber pots as a disgusting experience. Prisoners would fill them to the edge then walk along the landing spilling the contents. With the chemical toilets there is no spillage in the corridors and little in the sluice room. Slopping out was daily with chamber pots and the smell was not pleasant. Slopping out is carried out separately within each unit of the prison.

[72] When prisoners arrive in Peterhead they spend time on BHA for an induction in prison life which included education on infection control and on the use of the chemical toilet. The latter was mostly by means of a demo from another prisoner. They had a flask of water in their cells for hand washing purposes. Generally it was only necessary to use one ablutions area at a time for slopping out and there would be 3-4 prisoners waiting at any one time. Officers observe the process to make sure there is no tomfoolery. The smell from the chemical toilets during slopping out was not pleasant but not disgusting, it was more of a chemical smell than a smell of faeces. When prisoners asked, staff would open the fire doors, mostly during hot weather. After slopping out the smell would linger for about 20 minutes at most. The unit is sealed and should not result in a smell within the cells. He has never experienced an offensive smell on opening a cell. He has not seen officers deliberately absent themselves or covering their faces.

[73] This officer was involved with the sanitation action plan which led to the introduction of work parties and was set up in 2006. The document which he submitted in early February 2007 noted the new practice of adding 2 litres of water to the blue bags and recorded that "This has significantly reduced the offensive odours produced during the emptying of the chemical toilets." The practice of adding that amount of water had commenced before the introduction of work parties. A passman was present to dispense the bags and make sure that the correct amount of water was added. The need to do so had been identified by the industrial cleaning party. The result was a significant reduction in smell. This was noted by the FIG in its report where it records that using the correct amount of water:

"facilitates the more effective breakdown of the waste products involved and reduces the odour. All staff and prisoners have been made aware of this and there has been a significant decrease in the odours associated with the process since this was improved."

There was a perception amongst prisoners that emptying their own chemical toilets was unpleasant and embarrassing. This was one of the main reasons for the introduction of work parties. When work parties were introduced a sizeable proportion opted for this service and there was no difficulty in recruiting passmen for it. Now all prisoners opt in. A provisional open door policy now operates when prisoners are locked up, other than at patrol times, and subject to availability of staff. In 25 years he had never walked in on a prisoner using toilet facilities within the cell. If a spy hole is blocked the prisoner will be told to unblock it but if he reports that he is using the chemical toilet he will be given an extra five minutes to do so. There has for some time been a policy of allowing spyholes temporarily to be blocked. The staff have a pretty good working relationship with the majority of prisoners and he did not think it was extraordinary to take a prisoner's word for it. A conditional open doors policy is allowed to enable prisoners access to facilities if they ring their bell, other than at patrol times, i.e. night lock up, 12 noon-1pm at weekends and 5-6pm at weekends.

[74] The fogger was used for masking smells. Before the introduction of the work parties there was only one for the whole prison. After that, one was purchased for each hall. They fell into disuse as all they did was mask the smell not remove it. It was like an industrial air freshener. Ventilating the areas on hot days is more effective. In addition the smell is now not great. The FIG report contains a chronology of events which notes the following (7/32 para 47):

"Summer 2008: Use of Fog-it machine discontinued; no longer required as any odours within the hall were virtually eliminated as a consequence of;

i) Doors fitted to ablution areas contained odours within area.

ii) Introduction of a professional sanitation party resulted in the correct quantities of chemicals being used in the toilets. In consequence odours were significantly reduced."

[75] He had shown Professor Canter round on his visit to the prison but they did not generally discuss the system within the prison. He believes the comment at paragraph 21.2.6 of Professor Canter's report is made out of context. That records that the odours associated with the porta potti both within the cell and in the process of carrying them to empty and emptying them, were frequently mentioned by himself as well as by Greens and Stanger. In fact, when he referred to the smell he was talking about the previous chamber pot system when the stench of raw waste was at times horrendous. The chemical toilets are sealed units and any smell is basically a chemical one, although he accepted that it could be described as chemically treated faeces. He recognised that if the sliding cover between the top and bottom of the unit was left open there might be some odour from the unit. He does not believe that the smell from the chemical toilets could be described as disgusting. He had never encountered an offensive smell when entering a cell and did not recognise the graphic description given by Greens as valid. He agreed in cross-examination that the issue of smell from the process prior to the introduction of work parties, as well as concerns regarding spillages had been an issue for some body of opinion within the prison. The main concerns were that certain prisoners were careless during the emptying process.

[76] The practice of bombing is not as bad as it once was but it goes on to this day and is a problem in prisons across
Scotland, including those with in cell sanitation. The main problem area in Peterhead is the flat roof adjacent to A Hall. It is cleaned weekly but in hot weather a smell can build up and when that happens staff try to ensure that it is cleared that day. The conditions are those which come with the job and although he does not find it pleasant he would not call it disgusting either.

During the time he was in C Hall it had a dedicated dining area which was used quite a lot, although the majority of prisoners preferred to go to their cells where TV was available. In January 2007 all halls were provided with new tables and chairs to allow access by all prisoners should they wish it but the take up was a lot less than anticipated. Initially less than a third took this option and it is now even less. In fact, the prison has not seen fit to replace breakages the demand is so light.

[78] All prisoners have access to recreation on a daily basis. They have access to TV, DVD, snooker, pool, darts, board games and computer games. They can play outdoor games such as five-a-side football or boules. All prisoners have access to outdoor recreation on a daily basis. Groupwork was seldom cancelled because of staff shortages.

[79] The respondents also called the governor of Peterhead, Mr Michael Hebden, who has been with the prison service since 1989 and served at pretty much every grade within it. He was deputy governor at HMP Aberdeen from 2002 to 2005 then took the same role at Peterhead until 2009. He was acting governor twice during that period for about one year at a time. After a stint at HQ with the New Prisons team from August 2009 to March 2010 he returned to Peterhead as governor. He had also served in Shotts and Polmont. The New Prisons team is tasked with development of new prisons including Lowmoss, Grampian, Inverclyde and Highland. It is anticipated that Grampian will open in 2014 and when that happens Peterhead will close. In 2006 Peterhead prison launched a Sanitation Action Plan which led to the introduction of work parties and which ran in tandem with the FIG which was co-ordinated under the chairmanship of Stephen Swan. The FIG report was informed by an audit of current practices, an assurance report from the SPS nursing advisor, an infection control report from another SPS advisor and the Sanitation Action Plan already referred to. In order to take stock of current arrangements Mr Hebden instituted a further FIG which led to a 2010 report 7/32 of process.

[80] In the course of his career Mr Hebden had experienced the practice of prisoners having to use chamber pots and said it was very unpleasant. There were a lot of spillages and a terrible smell. The chemical toilets are generally an improvement. The risk of spillage is far less, they are opaque as opposed to see-through which the pots were, they have fixed lids and use will be much more straightforward.

[81] Prior to the introduction of work parties the process of slopping out the chemical toilets was far less controlled and took longer. The degree of expertise, knowledge and willingness to conform varied and accordingly so did the effectiveness. Spillages were largely confined to the ablutions area unless a prisoner actually dropped a toilet which occasionally happened. He could recall some fairly large spillages in the ablutions area. The smell was a mixture of bodily waste and chemicals and would vary according to how full the unit was and how effectively than chemicals had been charged. Again the length of time the smell would linger would vary, from half an hour to a couple of hours, depending on the weather and on how many were slopping out. He would consider it unusual for the smell to linger until lunchtime and was not aware of this having happened. It is certainly not his experience now.

[82] The process is now far better organised and far better controlled with a resultant reduction in spillages and in the level of smell. The processes are more industrialised and those involved are more competent. Any lingering smell now is largely chemical. There is an underlying smell from the waste but the main smell is chemical. Foggers were used with varying effect in the past but are no longer required. The introduction of full length doors in the ablutions area means that the fans there can work more efficiently. The changes were successful and have improved conditions for both prisoners and staff. Prior to 2007 it was an unpleasant process. Mr Hebden regularly checks the process himself and generally sees a consistent process, although sometimes people need to be reminded about aspects of it.

[83] As part of the 2010 FIG, and in anticipation of a reduction in prisoner numbers at Peterhead, the opportunity was taken to reconsider the possibility of allowing access to sanitation during lock up and patrol periods by means of issuing courtesy keys or otherwise, commonly referred to as night sanitation. The conclusion was that this was not viable. The provision of electronic locking would be prohibitive. Alteration of the cell blocks to include in cell sanitation, even if possible, would also be prohibitively costly because of the structure of the buildings and would mean a loss of prison capacity as some cell areas would have to be lost. The issuing of keys was considered and rejected, primarily for cost reasons. It could also only apply to low risk prisoners. The physical lay out of the halls meant it would be difficult to cordon off secure areas and there would be a risk of predatory behaviour between prisoners. The lack of secure areas would pose a potential threat to staff which was a particularly concerning issue given that the geographical location of the prison meant it was difficult to get back-up to the site. Consideration has been given to the question of whether it might be possible to operate a system with enough staff on duty to unlock cells on demand. One of the issues which has prevented this option proceeding is cost because of the number of staff who would require to be on duty. Associated with the greater number of staff required are problems of recruiting and retaining staff given the uncertainty of the future of the prison. Moreover the efficiency of an on-demand system depends on the number of people wishing to use the facilities at one time. He accepted that it had been the policy of SPS for many years to eliminate slopping out and that over the years various target dates had been set. He was aware of visits to Peterhead by the CPT and HMIP. It was recognised from the late 90s that Peterhead was "past its sell by date". The options he considered and rejected in 2010 had similarly been considered and rejected in 2002. What he has tried to do is to mitigate the effects of slopping out and make the situation as manageable and acceptable as possible. So far as staff are concerned he believes they simply accept the practice as part of their lot. It is not an issue they have raised with him. It would not, however, surprise him if under the old regime staff found something else to do during the slopping out process and might possibly have "made themselves scarce".

[84] C Hall always had tables and chairs for prisoners to take their meals at but they were increased in other halls late 2006 early 2007. Uptake tends to change with the prisoner population as groups split up and new groups form. Uptake also tends to reflect general society where people eat more often watching TV or from a tray. In prison there may also be a risk of being bullied for your food.

[85] "Bombing" occurs across the prison estate, even in prisons with in cell sanitation such as Shotts and Aberdeen, where it is probably an even greater problem than at Peterhead. Mr Hebden regularly walks around the outside of the prison accommodation at 0700hrs and seldom sees parcels. He cannot on these walks see the flat roof at A Hall so could not comment on frequency in that area. The groundsman goes out twice a day to clear up any rubbish, including such parcels if there are any. The flat roof is cleared twice a week.

[86] It is not in the interests of either prisoners or staff for a member of staff to walk in on a prisoner using the chemical toilet, therefore there is a practice to knock on the door and if the response is that they are using the chemical toilet to return a short time later unless there is some overriding operational reason such as a suspicion of self harming. Generally prisoners will be allowed to block the spyhole as long as it is removed afterwards. He recognised that it was extraordinary to allow this, given the importance of the spyhole for security purposes,but he considered it was necessary to avoid a situation where the dignity of the prisoner is compromised. He acknowledged that some prison officers might not take this approach at all times.

[87] Steven Swan has been HR Director of SPS for just under 3 years. In his 18 years with the SPS he was governor of Penningham, Cornton Vale, Greenock and Perth. From August 2006 until January 2008 he was Director of Prisons, with responsibility for all operational and running cost matters. He was responsible for the FIG report of 2007 no 7/1 of process.

[88] Although work had been done in the past on most of the options for physical change or staff based solutions to the problem of slopping-out, there was one matter in particular he wished to explore. In C Hall Perth there was an area secured from the rest of the hall by security mesh for prisoners on protection. He wanted to explore adapting that to maximise the out of cell sanitation options for Peterhead. The possibility was that the traditional gallery design stairwell would be sealed from the galleries by mesh and gates leaving access from the cells to the ablutions area using courtesy keys. However, his conclusion was that it would not be operationally safe, would only be a limited solution and that costs would be prohibitive. The risk of unsupervised contact amongst prisoners, with the possibilities for intimidation, would be operationally unsafe and the ability of staff to enter the area on patrol would be hugely circumscribed. Without deploying large numbers it would not be safe to do so. Also the ground floor could not be treated in that way. Normally at night there would be about 7 staff in a prison that size. To develop a system of night sanitation would involve something like 25 staff, even up to the day time complement of 50 or so, depending on the approach taken and bearing in mind the need to operate a shift system through the year. It was unlikely that they would be able to supply that number of staff given recruitment problems in the North East and running costs would be high. The prison is far from mutual support they could not take the risk of a significant incident which they would be unable to deal with. A similar option for a sub set of low risk prisoners was considered, but since low risk does not mean no risk security considerations remained an issue and overall the cost was deemed prohibitive having regard to the small number of prisoners who could benefit. Electronic locking was considered but a similarly costly infrastructure would be required, and again it could not be done on the ground floor. The physical limitations of the building made the provision of in-cell sanitation impossible.

[89] Most of the work for the report was done by a team actually at Peterhead. It was felt that anything which could mitigate the effect of slopping out would be desirable, even as an interim step, hence the introduction of work parties. He thought it was worth looking at all the options again, even though he knew the staff option had been considered by the board previously and rejected. In the course of the report it was noted that the extraction fans in the ablutions area were effective for their purpose. It is in this report that the importance of following the manufacturer's guidance for charging the blue bags was identified as facilitating more effective breakdown of the waste products involved and reducing the odour. Staff and prisoners had been made aware of this and there had been a significant decrease in the level of odour. The proposal was also made to replace the existing "saloon" type doors in ablution areas with full-length doors to limit any remaining odours.

William Pretswell, a Chartered Management Accountant is Director of Finance for SPS, having joined in 1992, and was for a time interim Chief Executive. He had seen the Government's response to the 1996 CPT report stating that integral sanitation would be installed at Peterhead in 1997/1998 but his understanding is that there had never been an agreed plan to do this. He could not explain how a firmer communication was made from SPS to UK government and hence to CPT. Nor could he identify the source of the CPT's understanding in 1994 that slopping out would be ended by 1999. On a number of occasions the impression gained by the CPT was of a more fixed timescale than had ever been agreed in reality. There was in the early to mid 90s an illustrative plan which identified the work which would require to be done to provide toilet facilities in Peterhead. Some works were carried out during the 90s, for example, the introduction of electronic locking in some establishments but nothing major was done regarding prisons without in-cell sanitary facilities. Targets were set for reducing the number of cells without in-cell sanitary facilities and in the main these were met annually. The Estates Review grew out a combination of factors. One was the rapid expansion of the prison population which had been experienced. Given the past and projected increase in population, levels of overcrowding would have increased substantially. The other was a desire by SPS to improve standards across the board and to end slopping out. The impact of the CPT recommendation that this be given high priority was the development of a strategy to end slopping out and investment was put into the estate to make that happen. Initially this was by upgrading of accommodation where feasible but towards the end of the 90s SPS started to build new house blocks at existing prisons where there was land available.

[91] By the mid 90s various options were being considered for Peterhead. One was to do some modification to existing blocks to put toilets in but they could not be put into cells as there was not enough space. The option of turning three cells into two with a sanitary annex installed in the middle one was ruled out as it would reduce capacity to a level which would not have been viable and the construction of the building did not lend itself to this. All parties moved on to the best option as being the building of a new accommodation block on site and demolition of the existing ones. That was the strategy at the time and happened at some prisons. It changed after 1999 in light of experience and a wider review of the estate, which was generally Victorian and consisted of a collection of buildings not for purpose. Experience showed that putting a new house block in an existing prison created its own problems. Issues with security led to a number of escapes from custody. In order to have flexible and single cell accommodation as much as possible and to improve the regime for prisoners, the strategy developed to build or modernise compete prisons and not just put new house block on old facilities. The first phases of the development were to build a new prison at Kilmarnock and rebuild completely Perth, Edinburgh, Glenochil and Polmont, all of which at the time practised slopping out. The investment was of the magnitude of 100 million on each location. The Government also committed to building two further new prisons, Addiewell which opened in 2008 and Low Moss which is scheduled to open in 2012. This strategy is the fastest way of ensuring that all aspects of a prisoner's life are improved. As to Peterhead, the strategy in the Estates Review was to close it and relocate to better facilities elsewhere but that recommendation was changed following consultation. Ministers were encouraging more work with prisoners including sex offenders and programmes directed to behaviour causing crime. That work was seen as important and Peterhead had a world wide reputation for excellence. Ministers did not want to disrupt that and announced that the prison would continue for the foreseeable future. Thoughts then turned to methods of mitigating as much as possible the effect of slopping out in Peterhead. Following further consultation on the future of prison services in the North East, it was decided in August 2007 that Peterhead should be replaced with a new prison in the North East, the aim being that the new prison HMP Grampian will open in 2014. This will not be a centre for sex offenders, the current thinking being to locate prisoners as close as possible to their home community, to encourage other authorities that work with prisoners pre and post release, and to facilitate family access. Prison officers across the country are being trained to be able to deliver sex offenders programmes.

[92] Mr Pretswell had prepared an Estates Development time line which showed that the total spend over the last 7 years was 444 million, mostly on new prisons. Aberdeen, Greenock and Inverness are to be replaced and so little has been spent there. Currently both Dumfires and Cornton Vale have one block of cells without in-cell sanitation where night access is gained by electronic locking.

[93] Mr Pretswell was asked about the 13 million of SPS underspend referred to in the introduction, and retained to finance other priorities at the time. He was clear that the funds had not been allocated for the purpose of eliminating slopping out and their diversion had no bearing on SPS plans for either Peterhead or Barlinnie. The programme at Barlinnie was dictated by the ability to take accommodation out of use to refurbish. They were going as fast as they could and the money was not allocated for the general purpose for slopping out nor had an allocation been made for the following year. The development programme in later years was fully funded by the government and the budget was increased so the lost funds came back in time to fund the acceleration of the capital programme. The diversion had no impact on the programme to address slopping out.

[94] It was not considered viable to install in-cell sanitation, equally the installation of electronic option was not considered workable, and the director of prisons considered the option from the SPOAS to allow prisoners access during the night carried operational and security risks. Moreover the staffing requirement would be very high. The board accepted that advice. In any event this option would not completely have eliminated the requirement for chemical toilets because of the delays which can build up in such a system, meaning that the chemical toilets would require to be retained in cells as back up. This option has been re-examined since but the underlying concerns have not been overcome. It is now being reconsidered because of the substantial reduction of prisoners, from about 300 to 150.

[95] He agreed that the Estates review had identified the use of chemical toilets at Peterhead as a temporary solution and that from 1998 to 2002 no steps were taken to eradicate slopping out in the prison. The Estates Review had concluded that Peterhead was not fit for purpose and should be demolished, the opinion being that slopping out could not be eliminated there. From time to time the board reviewed night sanitation and also did it annually as part of the strategy review each year. He agreed that it seemed that between 1991 to 1996 the Prison Service for England and Wales (EWPS) eliminated slopping out by providing night access in about 18,000 cells whereas in Scotland the numbers had reduced from 3,434 to 1900. He agreed that on a raw comparison the EWPS made better progress in the 90s but after the turn of the century the SPS has a much better record re modernisation of the estate. He said "We may have taken longer but it is a more permanent solution and of a higher standard in Scotland than in England". In the 90s the EWPS were better in terms of just putting toilets in the cell. In a lot of places that is just what they did, with the introduction of unscreened lavatories into the cell area. The SPS approach is for toilets with screens for privacy and to separate the area from the living area for decency and hygiene. In England even where electronic systems of access were put in place they have been found to fail on a regular basis, the result being that some form of slopping out is retained for periods during lock up when there may be queues for access. The SPS route is to provide integral sanitation with a screened facility to a very high standard.

[96] Michael Corcoran is Emeritus Prof of Building Design at Strathclyde University and Head of the school of architecture. His CV shows that he has an expertise in the area of building technology and environmental design, having established the Centre for Environmental Design and Research at Strathclyde shortly after his appointment to the Chair in Building Services Design within that university in 1993. His focus thereafter was on research and consultancy in environmental design issues. He has continued this interest in retirement by establishing his own environmental design consultancy. Immediately before his appointment at Strathclyde he had for some years concentrated on providing consultancy and design service in the fields of energy and the environment. He has given evidence in a number of cases in relation to the conditions of prison cells.

[97] He prepared a separate report in respect of the conditions of each of the petitioners and a supplementary report commenting on observations from experts for the respondents. He visited the prison, along with experts for the respondents, in May 2010 where he helped those experts in the carrying out of measurements and sketches. Once they had agreed a protocol and applied it to one room he was satisfied that he could rely on the measurements being made by those employed by the respondents. All the cells had single luminaries at high level on the wall or ceiling and fitted with one or two fluorescent tubes. Measurements in each case were made along the centre line of the cell at desk height, at the centre of the fixed table in the room and at the bedhead position. The SPS has draft standards for new build establishments which specify a requirement of 200 lux. A UN report on standard minimum treatment for prisoners (1995) states that:

"Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight."

[98] He assumed that this meant that there should be enough light to prevent eye strain from extended periods of reading. Visual acuity lessens with age and the amount of light. To avoid strain, light needs fall on the material a person is viewing. The SPS standard of 200 Lux perhaps anticipated that the desk or bedhead could be in various positions. The Ch Institution of Building Services Engineers (CIBSE) makes recommendation for lighting in Young Offenders Institutions where the recommendation for desk lighting is an average illuminance of at least 150 lux and not below 100 lux at any point on the desk. SPS draft design standards recommend a minimum of 200 lux at the table top or 100 if there is local task lighting. The EWPS specifies 200 lux at cell table height.

[99] The results of the measurements in the case of cells occupied by Greens can be represented in tabular form thus:


Cell No.

Table Lux

Bedhead Lux


Average Lux

A Hall





B Hall Annexe





D Hall













[100] From this it can be seen that all but one cell has less than 100 lux at the bedhead and in all but one the centre line average reading is below 200 lux, which is by no means a high level of illumination. If the visual tasks are limited to the table only one case falls below the standard of 200 lux.

[101] With the exception of Cell 3/07 in B HA, there was sufficient illumination at the table position. However, this was not the case at the bedhead position in any of the five cells, or at the table position in Cell 3/07 in BHA.

[102] The results for the cells occupied by Wilson were, in tabular form:


Cell No.

Table Lux

Bedhead Lux

Centreline Average Lux

A Hall









B Hall Annexe





The conclusion regarding these was that the average illumination levels do not meet the recommended level of 200 lux in any of the three cells occupied. With the exception of Cell 2/07 in BHA, there was sufficient illumination at the table position. However, this was not the case at the bedhead position in any of the three cells, or at the table position in Cell 2/07 in BHA. Because of a fault, the measured levels in cell 2/07 were probably not representative of lighting conditions during the period when the petitioner occupied that cell.

[103] The cells occupied by Stanger were also measured:


Cell No.

Table Lux

Bedhead Lux

Centreline Average Lux

B Hall













B Hall Annexe









C Hall





[104] Again, the average illumination levels meet the recommended level of 200 lux, except in the case of Cell 2/04 in A Hall. With the exception of Cell 3/04 in BHA, there was sufficient illumination at the table position. Even in the case of Cell 3/04 in BHAthe illumination level at the table position did not fall far short of that recommended. Illumination at the bedhead position was satisfactory in Cell 1/03 in BHA, did not fall far short in Cells 2/18 and 3/22 in B Hall and Cell 3/04 in BHA.

[105] Turning to the question of daylight, The Council of Europe's European Prison Rules (1987) state (page 4, paragraph 16) that:

"In all places where prisoners are required to live or work:

a. the windows shall be large enough to enable the prisoners, inter alia, to read or work by natural light in normal conditions ..."

Almost identical provisions appear in the 2006 rules.

[106] The adequacy of daylight in an interior is commonly measured by reference to what is known as the Average Daylight Factor(ADF). It is the average illumination in an interior space resulting from daylight expressed as a percentage of the exterior daylight illumination available at a completely unobstructed locations, i.e. with no surrounding buildings or other obstructions. As daylight varies with sky condition, the relationship between interior and exterior daylight illumination is not a fixed ratio. ADF is, nevertheless, a useful and widely used qualitative indicator.

[107] Of course, the amount of light from the sky varies continuously. To make the measurement useful it must be standardised, the convention used being that of an overcast sky, of which there are two standards uniformly overcast and standard overcast. ADF is calculated by means of an equation and this was done for all of the cells occupied for each of the petitioners. British Standards recommend an average daylight factor of 1% in bedrooms and 1.5% for living rooms. At no time would illumination of any of the cells occupied by the Petitioners reach 200 lux in daylight. To achieve this standard, the cells would require an external lux much greater than ever achieved in the North of Scotland. For adequate illumination, all the cells occupied by the petitioners relied on electric lighting for all occupied daytime hours. The requirement of the European Prison Rules is not met.

[108] On the question of ventilation, Prof Corcoran noted that although HM Prisons were not until relatively recently subject to Building Regulations, the 2009 guidance states that:

"natural ventilation of a room should be provided by the provision of a ventilator with an opening area of at least 1/30th of the floor area of the room it serves ..."

The openable window areas in all cells occupied by the petitioners are very much less than the ventilation opening size required by Building Standards.

[109] For sanitary arrangements the minimum air change necessary to adequately ventilate toilet space is 3 air changes an hour and is based on assumption that odours are properly carried away as in a flush toilet. The sanitary arrangement in Peterhead are such that prisoners are effectively living in a toilet. In one sense the situation is probably worse than this because the water trap in the conventional WC pan provides a seal that reduces the release of odour from faeces: which are anyway promptly flushed away. He doubted that the lid of the "Porta Potty" is as effective in containing odours. Conventionally, the ventilation of a toilet is arranged to remove odours from close to the source. It is very unlikely that natural ventilation from an openable window can provide a sufficient air change rate adequately to dilute the offensive odours that must occasionally arise and a table top fan would have little effect. The respondents engineers Stroma used computer simulation modelling to calculate ventilation rates and came up with a range from 1,21 to 2.72. Although 2.72 is very close to the desired 3 changes a minute, Professor Corcoran questioned the usefulness of this result, since it was clear that the situation was nowhere near to the long standing requirement of 1/30th of floor area in building standards. His long experience of computer simulations suggest that they have become more useable over the years through simplification but there is a danger that the user does not have the necessary knowledge properly to apply and interpret the results. He had not done such a calculation but thought that the resulting figures were exaggerated at the high end. In any event, even on these figures, 50% of the time the cells would be below this figure.

[110] Some cells have panes missing with a block of wood in place. Where that occurs it is the only source of ventilation in the cell. He recalled one prisoner making a remark about smells coming in from outside (following the practice of "bombing") but did not find this particularly convincing. The likelihood of smells entering in this way would be remote. It is just conceivable if the cell is at ground level and a large accumulation of packages is just underneath the window, but he would not consider this very credible. They would need to be in considerable proximity. On the occasion of his visit he saw no such evidence and a member of staff said there is now a low incidence of this occurring.

[111] In cross examination Professor Corocran said he had been in about 30 cases such as these in England and Wales and some in Northern Ireland. He agreed that a large amount of his reports in the present cases were based on the evidence he had given in Scotland in the case of Napier. When considering the question of illumination there are no minimum levels set in national law. The figures he has referred to are design standards, the closest set of circumstances being that which relates to YOIs, which gives a figure for desk lighting, of at least 150 lux, with the general illumination being no less than 100. Looking at the figures given for the cells occupied by Wilson, he agreed that the figures for cell 207 in BHA seemed anomalous and this could be a situation where one of the tubes had failed. For the other 2 cells the figures are at the desk are above 150 lux (258 and 338). In the case of Greens, all the cells exceed 150 lux at the desk (176-306). The same applies to all the cells occupied by Stanger (183 - 293).

[112] Professor James McManus has been the UK Member of Council the CPT since 2009 and was Professor of Criminal Justice, at Glasgow Caledonian University from 2004-2009, Chairman of the Parole Board for Scotland 2000-2005 and a Commissioner of the Scottish Prisons Complaints Commission 1994-1999. From 1992-2009 he acted as an expert adviser to the CPT and undertook over 30 missions with them.

[113] He visited Peterhead on 3 June 2010 but has visited the prison perhaps 100 times since 1970. He saw the pre-2007 slopping out procedure several times and in June 2010 saw the last five minutes of the process as currently operated, by which time the passmen were cleaning the sluice area and the chemical toilets were now back in the cells. During both procedures there was a fairly strong chemical smell, a mixture of bleach and chlorine. There was no other smell. The introduction of using the correct dilution of chemical had reduced the smell.

[114] When he had seen the old process there were usually 7 or 8 people in the queue. There were often spillages over the edge of the sluice. There was material on the floor which no-one had responsibility for. The smell was very strong in those days as the chemical was undiluted. It was a chemical smell, although occasionally there was a whiff of urine. The dominant smell was chemical. There would be a prison officer at the door controlling entry and others would be using the ablutions area to wash at the same time. They tried to see that only one ablutions area was used but that did not always work. There has been for some years a general acceptance in Scotland that slopping out is unacceptable and should be eliminated as an outdated practice. The chemical toilets are viewed as an advance but not a long term solution. Staff are happier with the new regime as there are fewer spillages. The smell moves away more quickly. Many prisoners indicated that they were able to avoid using the chemical toilet at night during the week. Increased staff for night sanitation would also be only a short term measure. As to that option it appears only to have been considered for the whole of a night: consideration does not appear to have been given to making a shorter extension, especially at weekends when there is a long lock up. It might not be possible to provide access on demand but it would be an improvement. He considered that SPS wrote off all the ways to provide night sanitation and showed a stubbornness in not providing it. For a minimum standard of decency there must be ready access to a flushing toilet. In the long term the only solution is the introduction of lavatories into the cells, which for Peterhead would be a very expensive option. Building could not readily be adapted and the only realistic solution is to knock it down and start again.

[115] Both staff and prisoners agreed that in summer the results of "bombing", particularly in regard to the flat roof of A Hall can be awful. During his visit Professor McManus looked out and saw a lot of rubbish on that roof, a mixture of all kinds of things. This is a practice which can occur even where prisons have in-cell sanitation. Most cells in Peterhead are slightly smaller than the CPT recommended minimum of 7m for single occupancy. That figure in his understanding is a general recommended minimum for all cells, not just police cells. It is a normative figure and excludes the sanitary area. Paragraph 42 of the CPT's 1991 report refers to that figure in relation to police cells. Police cells are rarely single occupancy. The standard has evolved over the years.

[116] He was referred to the commentary to Rule 18 of the European Prison Rules 2006 which states: "The CPT, by commenting on conditions and space available in prisons in various countries has begun to indicate some minimum standards. These are considered to be 4m2 for prisoners in shared accommodation and 6m2 for a prison cell. These minima are, related however, to wider analyses of specific prison systems, including studies of how much time prisoners actually spend in their cells. These minima should not be regarded as the norm. Although the CPT has never laid down such a norm directly, indications are that it would consider 9 to 10m2 as a desirable size for a cell for one prisoner. This is an area in which the CPT could make an ongoing contribution that would build on what has already been laid down in this regard."

[117] He did not recognise the figure of 6m but equally in his experience the CPT would never go anywhere near 9m or 10m - that would be a counsel of absolute perfection. He was shown the case of Davydov in which the court seems to apply a figure of 7m for single police cells and 9m for prisons but this did not correspond at all with his experience. That case did have to be seen in the context of Ukrainian legislation providing for only 3m and a reluctance to move on from that standard. 9m could be including the lavatory facilities. The figures used in that case appear to come from reports by CPT to UNMIK, which had special responsibility for Kosovo. The figures do not accord with his understanding which was 4m for shared accommodation and 7m for single cell accommodation excluding sanitary annexes. The standard which he has always seen is that of 7m. His understanding is that the standards which the CPT apply are 4m for a shared cell and 7m for a single one, excluding sanitary annexes. In his report he mentions the case of Malechikov v Bulgaria as something of a departure, being in his view a case involving slopping out in single cells in isolation, whereas in the past the CPT has always criticised slopping out in combination with other factors. He records:

"The CPT has stopped short of concluding that lack of access to flushing toilets constitutes of itself a violation of Article 3 of the European Convention of Human Rights; however, when it is associated with poor out of cell time, defective ventilation or other regime factors, it may constitute such a violation. In this regard, the CPT is following the same standards as the European Court of Human Rights in the cases cited in these pleadings. It is of particular note that the Court's standards have been evolving in relation to this mater, so that it now states, 'In any event and despite being accommodated alone in a cell, subjecting a detainee to the inconvenience of having to relieve himself in a bucket cannot be deemed warranted except in specific situations where allowing access to the sanitary facilities would pose concrete and serious injury risks."

[118] In cross examination he accepted that in fact in that case the court had referred to several other factors. In the full context the basis of the decision was the unjustifiably stringent regime. It is correct to say there are chairs and tables for about 50% of prisoners and he thought that to suggest a 25% uptake was an over-estimate, judging from his visit. He acknowledged that prisoners may like to watch TV when eating or may prize their own privacy. He was very surprised to hear it said the prisoners could block the spyhole when using the chemical toilet.

[119] Although the current process was described by HMCIPS as "degrading" Professor McManus said "What I saw was not pleasant but I would not say degrading was the right word." However, it was unacceptable and degrading in his view to have to live and eat in a poorly ventilated cell with a chemical toilet with long hours of lock up and to be on the sanitation team.

[120] Professor Andrew Coyle is Emeritus Professor of Prison Studies in the School of Law, King's College, University of London and Director of the International Centre for Prison Studies. From 1991 to 1997 he was the governor of Brixton prison; prior to that he served with the SPS and was in turn governor of Greenock, Peterhead and Shotts. He acts as adviser to bodies such as the UN and the Council of Europe, including its Committee for the Prevention of Torture.

[121] He explained the history of Peterhead from its origins as an institution for those sentenced to penal servitude until 1947 when that penalty was abolished and the prison was used for intractable prisoners within the Scottish system. Increasingly prisoners requiring conditions of protection for their own safety were held in Peterhead, mostly sex offenders. After the conversion of Shotts to a high security unit the number of sex offenders sent to Peterhead increased and the prison developed more by default than anything into one which catered primarily for such prisoners. The SPS carried out an estates review in 1999, published in 2002, which recommended that Peterhead should close. Following adverse local reaction, the government made a decision that the prison would stay open but in 2008 an announcement was made that the prison would close and a new prison ("Grampian") would be built on the site to house 500 prisoners and to replace the existing prison and that at Aberdeen, with an estimated completion date of 2013-2014.

[122] In his report he records that the right of prisoners to be treated with dignity is asserted in numerous international instruments including the European Prison Rules 2006, rule 1 of which states:

"All persons deprived of their liberty shall be treated with respect for their human rights".

Rule 18.1 of those rules provides:

"The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity, and as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climactic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation."

[123] Rule 19.3 provides:

"Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy".

The commentary to rule 19 observes that:

"The significance of institutional hygiene has been underlined by ECtHR which has held that unhygienic, unsanitary conditions, which are often found in combination with overcrowding, contribute to an overall judgement of degrading treatment. ..."

The CPT has also noted:

"Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment"

[124] The Woolf Report of 1991 led to changes in England. The best solution would have been to take three cells and convert the middle into a toilet and shower area but this would have been expensive and time consuming so in most cases the answer was to install toilets in existing cells. Professor Coyle suggested that the SPS did not show the same urgency in dealing with the problem and records that in the Napier case Lord Bonomy found that there was a positive policy decision to divert funds from this work. His understanding was that this sum had been earmarked for the refurbishment of Scottish prisons including Peterhead. He understood that the SPS was setting money aside generally for the upgrading of the estate and assumed that Peterhead would be included in that. He had no direct knowledge of this personally. He quotedthe comments of the CPT critical of slopping out which I have noted earlier in this opinion as well as the passages relating to Peterhead. He agreed with the CPT's observation that the act of using a bucket for defecation in a confined space is degrading. The CPT recorded that the provision of integral sanitation in Scottish prisons should be accorded a very high priority. It was in the government's response to this document that the assertion was made that integral sanitation was to be installed in Peterhead in 1997/8. In Professor Coyle's experience, when a CPT report is received for comment the governor of the prison(s) with which the report are concerned would be consulted as to the nature of the response. He explained that "simple sanitation" was a term used to mean the inclusion of a WC and unscreened lavatory into a cell. The position of the CPT is that a separate integrated annexe or cubicle is preferable. By the time of the CPT's 2003 report the timescale for eradicating slopping out in Scottish prisons had slipped back to 2006/7.

[125] HMCIPS has frequently commented on the lack of proper sanitation in Peterhead, noting in 1999-2000 that:

"In an attempt to provide a temporary solution, the prisoners had been provided with portable chemical toilets though these were extremely unpopular with the prisoners because they could only empty them once a week".

[126] At that time it appears that the plan was for the building of a new accommodation block at Peterhead. Adverse comment about slopping out was made in the 2006-2007 report and in that for 2008-9 the Chief Inspector stated:

"As long as prisoners in Peterhead have to endure their own form of slopping out our prisons are not yet decent...

It is therefore with some despondency that I come to the end of my term as Chief Inspector without being able to welcome the total abolition of slopping out in Scotland (it ended in England years ago). Prisoners in Peterhead still do not have proper access to proper sanitation. The form of slopping out used there is believed by some to be not quite as disgusting as the form which was used in other prisons, but it is still awful."

[127] In his report of 2007-8 he had asked:

"Is it an accident that the only prisoners still to endure a form of slopping out are sex offenders, the group of prisoners for whom the public and other prisoners have least sympathy?"

Professor Coyle did not think this was an unfair criticism, saying:

"Having moved out ordinary long term prisoners the only ones they knew would not object perhaps violently to going there are sex offenders they chose to locate them in the only prison which could not easily be refurbished."

However, I found this rather jarred with his earlier evidence that Peterhead had developed into a sex offender's prison virtually by default.

[128] In the 2007/8 report HMCIPS noted that there were limited opportunities for prisoners to participate in sex offenders programmes, that prisoners can spend long hours locked in their cells doing nothing, and at weekends do spend long hours this way, and that given the poor ventilation there is a noxious smell when the chemical toilets are opened up for use:

"Prisoners report that during the emptying process a vile smell permeates the hall despite a scented spray being used."

[129] The view was taken at a fairly early stage that Peterhead did not fit with the SPS's vision of a prison estate fit for the 21st Century and that the only long term solution was to close the prison and this was reflected in the 2002 estates review. The nature of the building is such that installation of electronic doors would have been very difficult. The alternative would be to have sufficient staff in place to allow controlled access on demand. Staff at Peterhead made proposals under which they thought that night sanitation could be provided and suggested that a relatively small number of staff would be required. There were concerns about security of staff when escorting prisoners from cells to the lavatory and also the practicability of how many prisoners they could escort at any given period and their proposals were rejected. The minutes of the board (7/33) seem to imply that the full day time complement of staff would be required but that was not Professor Coyle's understanding. The proposals from the staff, supported by the governor, suggested that a small increase in night time complement would be required, of about 4 staff. The proposals had been made by an officer called Duncan, who the witness knew to be capable and conscious of security. He admitted he was influenced in favour of the proposal by that knowledge.

[130] A subsequent suggestion was put forward from staff at Peterhead for a trial scheme of night patrols but was not implemented. One of the arguments against such a scheme was that it would be disproportionate in cost. Security was also a consideration and a very important one. He also acknowledged that there would be problems operating such a system without delays. The SPS made an operational decision which they were entitled to do, but perhaps they had not communicated the reasons very effectively to the staff at Peterhead. Everyone concerned with single cell slopping out of chamber pots finds it a disgusting experience and the majority find it degrading. The introduction of chemical toilets in Peterhead was better in degree than using a shallow plastic bucket but in his view the principle remains the same and the degrading nature of the task remains. He has not experienced slopping out in Peterhead with the use of a chemical toilet either before or after 2007.

[131] Professor Coyle was last in Peterhead in 1990. He has not spoken to any of the prisoners. His information about what has happened in Peterhead came from his reading of reports and other documents. The CPT looks individually at items such as sanitation, regime, staff relations, educational provision and so on, and also looks at the prison as a whole. It looks at the cumulative effect. In 1994 the CPT commented that regime appeared to encompass a varied and potentially challenging range of activities and this remained the case today, from the most recent HMCIPS report. He agreed that the commentary to the European Prison Rules suggests that the rules constitute best practice. He accepted that the CPT in seeking to apply best practice may be aiming at a standard higher than threshold for A3. He was shown the CPT report on Brixton 1999/2000 (6/17) where "simple sanitation" i.e. a lavatory within the cell had been installed. The report had stressed that the objective was to avoid prisoners having to comply with the needs of nature in the presence of other persons in a confined area that is used as their living quarters. In England in the majority of cases the solution adopted to eliminate slopping out was that of installing simple sanitation. The cell certification planning parameters for England and Wales in 1999 showed a cell with simple sanitation installed, 2 beds and 2 occupants. He had noted in his reports that the process of conversion was completed there in the mid 90s but that recent overcrowding has led to some unconverted accommodation units being brought back into use. In England there was a ministerial instruction to concentrate on sanitation. In Scotland they took account of other factors including the prisoners' survey which allowed them to comment on their priorities and introduced improvement to other areas so they did not concentrate on sanitation alone. The Independent Monitoring Board's report of August 2020 (7/48) indicated that in England and Wales:

"in-cell sanitation does not exist in 2000 cells across 10 prisons. An electronic unlocking system exists in these prisons but excessive queuing and limited access time cause further unplanned problems. The use of buckets continues at night-time causing the practice of slopping out to continue, despite the formal termination of this system some 14 years ago."

Slopping out also continues in Ireland, Portugal, Sweden and New Zealand. It would be wrong to say that in 2010 Peterhead stands alone but it is the only prison in Scotland which practices slopping out.

[132] Prof David Canter did his PhD in architectural psychology, a subject which became known as environmental psychology. Although his more recent interest has been in investigative psychology, Professor Canter had been instrumental in the development of environmental psychology in the UK. The first major text book on the subject was published in the US in the1960s. In Britain the emerging subject was called architectural psychology, in the US it was called environmental psychology. Professor Canter organised the first architectural psychology conference in the UK in the 1960s and set up the first course in the subject in Surrey in the 1970s. He set up the journal of environmental psychology. Many concepts of environmental psychology have been absorbed into mainstream psychology so the journal is referred to widely by other researchers and psychologists.

[133] Professor Canter visited PH in March 2010. He visited Greens in E Hall and Stanger in C Hall and spoke to Mr Alfred Wemyss, prison officer. He had been to the prison 2 years before that.

[134] He described his expertise as that of a scientific psychologist who has devoted much of his career to the study of how people interact with their surroundings and the psychological impact of those interactions. This is to be distinguished from the building science aspects reviewed by Professors Markus and Corcoran in which they relate particular physical parameters to levels which have been deemed acceptable, although the two disciplines inform each other.

[135] A clinical psychologist works in a medical framework with people who have some form of mental illness. An environmental psychologist deals with patterns of use and interaction with physical surroundings. The way that people react to their surroundings is influenced by the sense they make of them and what meaning those surroundings have for them. When evaluating any environment, the main debilitating effects which an environmental psychologist would look for are not mental illness but lack of privacy, distress, stress and other psychological aspects of experience such as diminished self esteem.

[136] In studying people's reactions to their surroundings certain major issues are seen to be relevant. Privacy is a main component. Environmental stress is another factor, i.e. how surroundings can create stress through their physical components e.g. aircraft noise or lack of daylight. Environmental psychology has addressed how a person's self identity is shaped by the place that they are inhabiting or with which they associate themselves. This is called place identity. An important aspect of how people think of themselves is self esteem. In this context the meaning of that phrase will be close to the ordinary dictionary definition - one does not need to elaborate what it means. It can be equiperated with a person's idea of self worth and can be evaluated by means of questionnaires in which people were asked to respond to three statements viz: I take a positive attitude towards myself; at times I think I am no good at all; all in all I am inclined to think I am a failure.

[137] Typically, concepts such as privacy, territoriality, place identity and status are used to consider the impact which any location has. References to self worth and feelings of significance could be recast as considerations of privacy and place identity. However, despite using different terminology most environmental psychologists would not disagree fundamentally with his approach, many experts regarding privacy as one of the central issues about how people regard their surroundings.

[138] In his report the professor stated that it was his understanding that none of the petitioners had shared cells in Peterhead and that the facilities throughout the prison were within acceptable norms so it was not necessary for him to offer an opinion on the environmental psychology of crowding except in relation to the process of queuing to empty the chemical toilets. By this he meant that the number of toilets, the recreation space, the workshop facilities and the amount of space per prisoner broadly would be considered acceptable. Where issues arise from the limited space within a cell for the activities to be done there he thought to use the term crowding would be confusing since it implies contact with other individuals.

[139] He discussed what he described as the "theory of place" saying that locations take on specific meanings associated with particular patterns of use. There is never such a thing as a multi purpose location. The more difficult it is to create the appropriate subset of places within an entity or context the more disturbing and stressful that location can be. In other words if the place through its space, heating, lighting and other services as well as its pattern of use, and the control the occupants have over it, is appropriate to the purposes the occupants seek to achieve then the place is deemed satisfactory. If it does not allow those purposes to be achieved or interferes with them that is what reduces the psychological quality of the place.

[140] Control means the ability by the occupant to manipulate the physical and symbolic conditions of the location to achieve the purpose relating to the activities a person seeks to carry out in that location. The most obvious symbolic condition is whether someone can create some personalisation, some quality of the location which represents themselves. If a person cannot do that it challenges their self identify and in more extreme cases can be stressful.

[141] In his report he records the following:

"The purposes that places support or hinder include all basic human functional activities that may be considered appropriate for that place, such as eating, sleeping, recreation, toileting and related hygienic activities such as washing. But more importantly, they also include more psychological processes such as supporting feelings of wellbeing, facilitating effective interactions with others and helping the occupant to cope with other personal or institutional demands."

[142] Most people assign different places for different activities and although it is possible for rooms to combine one or more of these "places" this inherently causes conflict and associated stress. In particular, society has developed very strong and clear demarcations and taboos between toileting activities and social interaction and eating.

[143] In 1980 he made a study of how people react to their surroundings in prison. These studies showed that the impact of a place is in part a function of the other places to which the user has access. A cell has its impact on its inhabitant in part from the other related places to which he has access and the activities allowed in it and related areas. The use of the word "place" does not mean "location". It is used to describe a conceptualisation of some physical form which includes an understanding of what is likely to go on there as well as the symbolic meanings, which are in part derived from the larger scale places of which a unit is a component. Environments needed for sleeping and eating are reflected in all societies by the normal use of different places for these functions, even if they are just different areas of the tent. The impact of defecation or other toileting activities on the space in which it occurs, as well as the different demands on the environment, from e.g. eating or sleeping, gives rise in all societies to the creation of different places for these activities. When a distinction cannot be created between defecation and other activities it is a personal affront to most people's self worth, as in the breaking of any taboo.

[144] Stressful place-related experiences can have a brutalising effect in making a person perceive what it is to be human differently from how others will perceive it. Environmental stress can work in an indirect way by not enabling a person to create appropriate "places" for the different purposes needed to maintain normal psychological functioning. The related lack of any reliable privacy would reinforce any brutalising effect. The ability of others to enter unannounced and the presence of two spy holes contributes to the identification of the cell as not being a private space, yet an important part of symbolism attached to places is the level of privacy which they demonstrate.

[145] Having an unscreened toilet within the cell is from the starting point a symbolic reflection of the act associated with it: the separateness which would normally be associated with toileting is absent.

[146] Stress is in part a function of the degree of control a person has over his actions - the less control the more stress. Not knowing when a certain activity will be allowed is more stressful than knowing it would not happen at all. Whether one can open a window, have enough light to read by, or get out to go to toilet are all relevant factors. The effect of any two stressors combined is much more than the simple effect of each one added to the other.

[147] It is a central principle of environmental psychology that you need to take account of an individual's interpretation of his circumstances. One takes account not only of the objective facts of a situation but also a person's subjective interpretation of those facts within the broader cultural tradition of which he is part. As to the objective conditions within the cells in question, the first point to note is that it is very difficult to create a distinct place for toileting/washing and that the chemical toilet is unscreened within the cell. The odours that come from it mean that the whole experience of defecation/urination spreads throughout the cell symbolically as well as creating physical disgust. It drives the other activities into a corner and puts more pressure on the rest of the space for recreation and would undermine the efficiency of these activities as a release. The possibility of smells undermines the possibility of normal interaction and this would be increased by any weaknesses in the ventilation system. Equally any inadequacy in lighting might inhibit recreational activities. It would seem that there was just enough room within the cells for prisoners to have a space to eat and for some recreational activity distinct from the bed, although the continuous presence of the porta potti must make it feel as if this is all happening in a toilet. It would not be surprising if prisoners found it quite difficult to eat in their cells as senses of taste and smell are closely combined. This would not be helped if there were insufficient spaces for prisoners to eat in the hall, as studies have shown that even the presence of a lot of seats does not mean that they are psychologically available. People will only choose a seat next to a stranger under pressure. There are many factors which might make prisoners reluctant to mix with each other.

[148] In any hierarchical organisation rules provided by senior people do not necessarily find their way down to lower levels so prisoners may never have been properly informed of what the flask of water in the cell is for, or even about the use of the chemical toilet, even though it may be understood higher up in the organisation that there were protocols in place to ensure dissemination of information. Requirements coming from senior levels are often distorted or do not come down through the system at all. Anything requiring technical instruction is likely to be problematic.

[149] Numerous reasons could be postulated for the practice of "bombing", including the embarrassment of the emptying process, but to determine the cause it would be necessary to ask those responsible.

[150] The amount of time spent on lock up was also significant since where prisoners spend much of their time out of the cell or have their own keys they attach much less significance to the cell itself. Compared with the time people will normally spend say in a bedroom - typically 8-10 hours during which they will be asleep most of the time, a length of time in the space beyond that time becomes coercive.

[151] Turning to the question of whether, having regard to these factors, the conditions were capable of causing any of the psychological effects he had mentioned Professor Canter said that initially, having studied conditions where prisoners shared cells and had a small pot for defecation, his original reaction was that conditions in Peterhead were clearly not as debilitating. However, the more he has studied the petitions and the prisoners' experiences the more it seems that the basic fact of having a chemical toilet as the focus of a cell is brutalising. It sends a message that prisoners are not now part of what we call civil society and makes it difficult to use the cell in a normal way. It would be entirely consistent with prisoners seeing themselves as unworthy. As to the potential for stress and distress he had no doubt about distress but the extent to which it causes more extreme stress takes one into an academic question of what is meant by that.

[152] Professor Canter did not witness the slopping out process at Peterhead but had received accounts of its operation from others. The description of the old regime accorded with the dehumanising experience which can be associated with the activity and creates a potentially stressful situation. Having to carry a container of personal waste in open view with the potential for odours and spillage and competition to get the activity over as quickly as possible explains why it might be stressful and repugnant. Relations with prison officers is undermined by their need to manage this activity when it has this disgust associated with it.

[153] Studies suggest that perception of the length of queue and associated tensions are modified by the purpose so for a desired outcome the estimate will be shorter than in reality whereas if carrying a chemical toilet full of excrement the length of time will feel longer than in reality. Time out of cell is important for prisoners and having to use such time for this purpose can be stressful. People would have a strong emotional reaction to having raw excrement in an area used for washing and showering. Within the cell the anticipation of slopping out could itself be distressing and the fact that it had to be cleaned and returned during the process would contribute to feelings of low self esteem. He himself would describe it as degrading.

[154] As to the current system, the main advantage lies in identifying individuals who can be properly trained in hygiene and disposal and so lead to a more effective disposal of waste. However, the chemical toilet remains within the cell and although the efficiency with which it is cleaned and refilled may be improved that depends on the individual passmen. If passmen are given training and well managed, they might take some pride in their work which could enhance their feelings of self worth, but this would not be so if there were any element of coercion. It is debatable whether these men can be regarded as truly having made choice since the whole atmosphere in prison will influence what a prisoner will want to do. On one view nothing is truly voluntary since prisoners are looking for parole, wish to demonstrate they are doing something useful and want to have some control over their own facilities. The position of Greens illustrated this, since he had limited his role in the team to the transporting of the toilets, leaving others to do the emptying. The feelings expressed by prisoners about having to participate in slopping out are significant because self esteem relates in part to shame and embarrassment. Emotional reactions such as feeling on a "downer" or having anxiety about the process reflects a lowering of self esteem. The same can be said of the feelings which Greens expressed of people making a mockery of him during the process: this puts him in a position of embarrassment and shame which are closely associated with feelings of a lack of self worth. He said that Mr Wemyss was present when he visited the prison and made frequent reference to odours, as recorded in his report. On at least one occasion Mr Wemyss agreed that, in the past, the smells permeated the whole wing of the prison. Paragraph 21.2.6. of his report states that:

"The odours associated with the Porta Pottis, both within the cell and from the process of carrying them to empty, and the emptying of them, were frequently mentioned by Mr. Greens and Mr. Stanger and by the Prison officer Mr. Albert Weymss. These comments were unsolicited, being made spontaneously in response to a general request to describe what it was like. They were similar to comments I have received when discussing the 'slopping out' process in other prisons."

However, it should be noted that he had never experienced in other prisons a regime which involved chemical toilets. Prison officers in, for example, Barlinnie when chamber pots were in use had described that process as disgusting:

"I think I put it to Mr Wemyss that I had spoken to other prison officers in the past and they had said it was disgusting and Mr Wemyss agreed rather than Mr Wemyss volunteering it directly."

[155] In his report Professor Canter went on to state:

"The conditions in HMP Peterhead are certainly not as bad as the worst prisons in England and Scotland that I have visited. The use of the Elasn 'Porta-Potti' is also clear improvement on the chamber pot that has been in use in many prisons in the past. The experience of being degraded or dehumanised by the conisations are thus not as great as other conditions on which I have reported."

However in his view the system retained aspects which were dehumanising, viz: the chemical toilet tends to dominate the cell, it requires careful maintenance and has great potential for foul odours, spillages and interpersonal conflicts. The fact that prisoners do not have access to out of cell facilities at night aggravates the situation and increases the role of the chemical toilet. His conclusion was therefore that their use has clear potential for causing stress and making prisoners feel less than human: in this regard they can be seen as brutalising.

[156] In cross examination he agreed that one of the features which meant that the system in Peterhead was not as bad as some of the prisons he had visited was that the chemical toilet has a proper lid on it and if used effectively would keep the odours at bay. Moreover, the potential for privacy in the present cases was a lot greater than it had been in the Napier case, a factor which was significant when addressing the psychological impact. The prisoners also benefitted from much more out of cell time than Napier and a structured regime of activities, all of which are important psychological factors. Nor was Peterhead overcrowded as Barlinnie had been. The date of February 2007 was mentioned in his report as significant since it was his understanding that there had been a regime change about then. His understanding from Mr Wemyss was that these changes meant that there were no longer the same smells and spillages were more controlled. On his visit at about 1100hrs there was not the strong smell he would associate with what had previously been described. From his instructions he had understood that his focus should be on conditions prior to 2007 although he took cognisance of some continuation of conditions after 2007. I note that at paragraph 20.5 of his report, in the section which deals with "Procedures at Peterhead" he observes that "The following comments deal in the main with the situation before 19th February 2007, except where otherwise noted."

[157] The concept of self-esteem is capable of assessment by asking focused questions but in this case he did not carry out an assessment of the self esteem of any of the individuals involved. The notion of place identity is the relationship between a person's concept of themselves and their understanding of the meaning and identity of the place they are in. A person's understanding or identification of the place impacts on their understanding of themselves and their self-esteem. Knowing that being in Peterhead would be associated in the minds of the public with being a sex offender would not increase the self esteem of the prisoner and it would in itself be extremely challenging to the personal identity of a prisoner such as Wilson who considered himself innocent of such a charge. It would be a natural psychological process for such a person to say that he does not like to think about Peterhead at all because of those connotations. If one were to focus on the individual to form an assessment of his self esteem, account would have to be taken of all the factors that would influence his self esteem. His report arises from ongoing patterns of behaviour and is an exploration of the potential generalities rather than an analysis regarding specific individuals. His task was to see how conditions of the individuals concerned illustrated the potential for psychological impact rather than to assess what the impact might have been three years ago. In his report he notes that:

"Accounts from the petitioners to me about their psychological states, depression etc. have been omitted as I have no way of verifying them."

He explained this by saying:

"All I did was to use their descriptions to me as a way of building up a picture of the use of the cell and the slopping out procedure and matters relevant to it in accordance with my understanding of the possibilities for that use and how consistent that was with other studies I was aware of. I felt that the court would get a clear account from the petitioners and if it were necessary to refer to their particular accounts, it would be better to rely on the account given to the court rather than for me to drift into a clinical assessment which would really be beyond my competence."

[158] Part of the subjective element of the theory of place referred to at paragraph 10.2 of his report is to ask what is the purpose that in individual wants to achieve in that place, as part of a framework which recognises that the purposes relate to the set of activities that would be normal within the context. The notion of purpose refers to the range of activities normally housed in a location so has a slightly more technical meaning than might first be apparent. If such a notion is approached with "informed intelligence" it is clear that what is being referred to is a set of ideas that individuals will try to achieve: if they cannot achieve that the place is not satisfactory. It is wrong to describe such an approach as circular. When making sense of a particular place a balance has to be struck between a totally idiosyncratic perspective relating to a certain individual and an over generalised concept that implies no differentiation between different experiences. If a number of places are combined in a single location, there will need to be a means for managing the activities and differentiating within the different sub places. A single room can have a combination of places within it and can be managed by each activity having its own place or being carried out at separate times. The theory of place means that one looks at the physical places and also the range of activities that might reasonably be carried on in that place. It is correct to say that if the range of activities might reasonably be managed within the space, it could be described as satisfactory, but the symbolic meanings have to be managed as part of that process for the place to be acceptable. There are 3 components: physical, symbolic and cognitive. One can identify the physical aspect and the reasonable activities and behavioural aspect but identification of the symbolic aspects, what they are what effect they have, is the more difficult. It is at this point that the subjective elements really enter the picture. If two individuals both describe the use of a porta potti and that accords with what one can see regarding the equipment and the slopping out facility then that can be taken as some corroboration that the view one is forming is valid. If in addition they talk about disgust and although using different words describe the same experience, using some symbolic reference to the cell being like a toilet, then one is getting closer to understanding what the experience means for them.

[159] On the issue of privacy he acknowledged that a spyhole might be necessary for security reasons and some sort of spyhole might be operationally reasonable. A tolerance of a prisoner covering the spy hole when using the porta potti would be a sensible adjustment respecting a prisoner's privacy while adhering to the operational need to have a spy hole. The regime and how it is managed modifies the particular experience of the place. The ability of a prisoner such as Mr Stanger to occupy himself in painting, playing the piano and watching TV would be important in considering the impact on him. For some prisoners the cell does on occasion give the opportunity to avoid unwanted association with other prisoners but one has to be careful to avoid treating privacy as one overarching factor.

[160] As to how stressors operate on individuals he agreed that this is a complex process and that if one were seeking to assess the state of an individual at any one time one would need to take account of all factors. If looking at the individuals one would need to carry out an assessment of them. He agreed with Professor Cooke that equating various stressors in a mathematical way is extremely difficult. For example, he noted in relation to Greens that:

"There is some indication in this account that Mr. Greens related what he called his 'low self-esteem' to experiences before entering prison, but as he reported it to me the horrors of slopping out certainly did nothing to increase his self esteem."

Since he could not go back in time and evaluate Green's self esteem the most honest way of evaluating it seemed to be to say that the experience had not increased his self esteem. The picture was consistent with a person of low self esteem feeling that it was lowered by the experiences he described. Professor Canter had not sought to determine whether there were any illnesses produced by the conditions but whether there was any evidence that they had or could have influenced the state of mind and self-perception of prisoners. It is a recognised phenomenon that prisoners might have problems with self esteem prior to entering prison and that experiences such as divorce and associated problems with children can exacerbate these. Although these would all be issues to explore in assessing someone's psychological state, if one were looking at what were the implications of his experience of the place in general it would not be necessary to "bench mark" an individual's level of self esteem before that experience. Such an assessment would include the "positives" such as the ability to display photographs of his children or the pride felt in having qualified to act as a Samaritan.

[161] Professor Thomas Markus is Emeritus Professor of Building Services of Strathclyde. His professional and teaching experience is set out in his CV 6/53 of process. Between 1966 and 1986 he was Porfessor of Building Design at the University of Strathclyde. He had started a new department there consisting jointly of architecture and building science, the latter not formerly having been part of the department. He took with him the Building Performance Research Unit which he had started at the University of Cardiff. The unit had four or five members including as the psychologist member the then Dr David Canter. Professor Markus is the author of a number of books including one called Building Performance which he edited and in which Dr Canter was involved. It deals partly with the social and psychological aspects of building design. He prepared reports in respect of each of the petitioners in this case, although there is very little difference in them save for measurements and references to cells. For convenience in this opinion, unless otherwise indicated, references are to 6/33, the report lodged in relation to the petitioner Stanger.

[162] One section in that report deals with "Crowding, density and stress". Most of the evidence on stress is based on the work of psychologists. Some of these papers he has studied himself, sometimes he relied on the use made of these papers by psychologists and also on the use of the papers in legal cases in the United States. Prof Cooke had pointed out in his report that Professor Markus was not in a position to take a scientific and critical view of the nature of these papers, which he accepts, so he has relied mainly on the use made by other scientists and in legal cases. There is a remarkable lack of evidence worldwide and particularly in Britain of the psychological effects of being in prison and this is the best evidence he could find. This kind of work is of help in evaluating buildings: it assists in the good design of buildings so that the design can accord with the use people want to make of them. All the research material is of secondary importance to social and cultural factors that influence legislation and practice in prison design. Very little of prison design or standards in the UK or Europe can be seen to be influenced by this kind of research. Most standards on space and sanitary conditions are based on cultural norms as to what is expected in the home or work place and these change over time and from place to place. When he uses the term "crowding" he is using it in the sense of a subjective experience of lack of adequate space for what you want to do, inside or out of your cell, not in the way in which the term might be used in prison recommendations about overcrowding of cells. It is subjective from the point of view of a user who may feel there is not enough space. There is widespread agreement amongst researchers and authors that there is a distinction between density as a physical condition and crowding as an experience, what might be described as "social density" i.e. too many people in a given space and "spatial density" i.e. too little space for a given number of people. The former can be varied by changing the group size in a given amount of space (which does not arise in this case), the latter by changing the amount of space for a given group size. Professor Markus interprets spatial density as being a concept applicable to a single prisoner (i.e. a "group of one").

[163] In paragraph 3.2 he quotes from the Building Research Establishment (BRE) Report "Building Regulation: Health and Safety" (2001) which he describes as one of the most important pieces of research which described crowding as:

"a social and psychological phenomenon which does not directly reflect population density: people in high density situations do not necessarily feel crowded whilst low density is no guarantee that people will not feel crowded."

He refers to the BRE report as relating to "... stress due to crowding" and describing some of the physical health risks and psychological effects of crowding, and says that though much of the report is focused on houses and housing, it also specifically refers to prison conditions. He acknowledged that quite a lot of the material to which he made reference is in the context of double cells dormitories or conditions outside the cells. He quoted from a 1974 document by regarding prisons that:

"The problem today ... is essentially one of crowding and lack of privacy. This is not only a stress element in itself but it encourages the formation of prisoner cliques and tends to break down prison discipline. The individual cell need not be inhumane; what matters more is time spent in it and the opportunities for exercise, recreation, study and work made available in the total setting."

In the light of the literature quoted by him he concluded that there are two aspects of crowding that appear to be relevant to the petitioners, first, whether there was crowding outside the cell, especially during slopping out, and whether inside the cell, on account of its size and shape, there was an issue of spatial density.

[164] In his report he goes on to record the agreed measurements applicable to each of the cells occupied by each of the petitioners and in each case uses these figures to produce what he refers to as a "useable net space". "Usability" will be determined by the design and layout of furniture, by the spaces in between the furniture, by the light sources and their directionality. For "useable net space" he has deducted from the measurements the amount of space which would be taken up by heating pipes. In respect of the cells occupied by each prisoner he had produced a tabular representation of the comparative cell size under reference also to cell sizes in Pentonville and recommended sizes for new build cells. The term "wet cell" referred to in these tables normally means a cell with integrated sanitary facilities. Figures for wet cells are used since activities of this kind are carried out within the cells in Peterhead. The phrase "no crowding capacity" means that the cell cannot accommodate another prisoner. In each case he deducted 1 square metre to account for the space used by the chemical toilet and washing facilities to reach a figure for the "effective floor area" ("EFA"). However, he acknowledged that strictly speaking the only thing that can be compared are the gross areas, which are usually what are stated in any recommendations. The rest is deduction on his part on how usable the cell might be. To illustrate this part of the evidence I reproduce one of these tables here, (the one for Stanger):

Stanger's cells, and other prisons and recommendations

Gross Floor Area

(GFA) existing single

wet cell, no crowding


Usable floor area,

(UFA) existing single wet cell, no

crowding capacity

Effective floor area,

(EFA) existing single

wet cell, no crowding


Gross Floor Area

(GFA) new single

wet cell, crowding


Stanger's cell B 2/04




Stanger's cell BHA 2/18




Stanger's cell BHA 3/22




Stanger's cell BHA 1/06




Stanger's cell BHA 3/04




Stanger's cell C 2/06




HMP pentonville (1841)


POPPI (ref 1)

8.00 - 9.00

CPT (ref 2)


Home Office cell certification standard

(ref 3)


Home Office Prison

Design briefing system

(ref 4)


SPS Design Standard

(ref 5)


SPS Standard cell certification checklist

(ref 6)


HMP Kilmarnock


[165] Of the documents referred to in the first column, POPPI refers to a European Council recommendation on Prison Overcrowding and Prison Population Inflation.

The CPT figure is taken from the 1991 report 6/49 which suggests that a desirable level, rather than a minimum, for a police cell would be 7m. By deduction they would be suggesting something bigger for a prison cell. The Home Office figures are still draft standards but he thought they have been used in prison design in England. The figure is 5.50m without crowding capacity and 6.80m with. The Stanger figures do exceed these, but they are gross figures which ignore space taken up by heating pipes and the space for sanitary accommodation, for which one would need to add at least 1.2 m. The equivalent figure is thus over 8m. The SPS figures are also draft ones but have been used for new prisons such as Kilmarnock, although apparently some doubling up is expected at Kilmarnock. They apply to new prisons and, where relevant, conversions. The SPS figures appear only to relate to new cells or to conversions of existing cells. The SPS design standards are exclusive of toilet cubicle and duct.

[166] In relation to all the petitioners the conclusion reached by Professor Markus was that:

"In summary, the areas of cells occupied by the Claimant exceed some UK standards, but fall below current space standards of HM Prison Service, the SPS and substantially below most European and American standards. They have the inescapable drawback of having to rely on slopping out for some of the time, a drawback which can be compensated to some extent by allowing as much time out of the cell as possible."

[167] In his report Professor Markus goes on to quote extensively from various of the documents reporting on conditions in Peterhead and referred to above as well as from some of the background documentation which he had consulted as explained above. He described the process as "degrading", although he had never seen it. He was also concerned with the limited hand washing facilities. His conclusion on the matter was expressed thus:

"In conclusion on this issue, the Court will no doubt hear evidence on these matters. I have formed the opinion that the slopping out process, and associated limited hand-washing facilities, whatever the truth of detailed claims and counterclaims about time allowed for emptying porta potties, and opportunities for washing in the communal bathrooms may be, is inherently undesirable, and possibly (from the health point of view) dangerous process, which should not be used in present-day prison regimes."

[168] The last comment in that conclusion relates, as I understood it, to his views on the issue of hand washing and the risk of infection from the presence of the porta potti in the cell when other activities such as eating are taking place and the emptying process prior to February 2007. His view on this matter was not supported by the microbiologists.

[169] In his report Professor Markus referred to statements and documentation relating to out of cell time of the petitioners and his conclusions were expressed thus for each petitioner:

"The claimant's evidence, referring to a report by the HMCIP indicates that weekday lock-up, for a prisoner not working, is about 13.35 hours, with possibilities of access to showers and other facilities "as practicable". At certain dates the claimant attended PT, education, work parties - and at those times he would have been out of his cells for anything up to 6 hours more than when he was not working. It is claimed that work parties were frequently cancelled. At weekend lockup is ca 15.25 hours, for those prisoners not attending church or recreation."

He then stated his overall conclusions:

"On the issue of cell size, my opinion is that the Peterhead cells are larger than some recommended areas, with the exception of one cell in B Hall and cells in B Hall annexe, which only just meet the HM Prison service minimum area. However they fall below, in some cases substantially, the recommendations for current English and Scottish new build prisons, and below many of the European standards".

The exceptions are not exceptions when gross figures are compared, only on the basis of the figures given by Professor Markus for net usable area.

[170] In a supplementary report 6/34, he again explains the basis for his calculation of the usable space in a cell. He had also been provided with further information about the current slopping out regime including spillage logs, from which he suggested that the new regime is not perhaps as efficient as claimed. His conclusion is stated:

"My opinion is that the new evidence with which I have been supplied reduces the undesirability of the slopping out procedure, but I nevertheless still believe it to be unacceptable for a prison today."

[171] In cross examination he said he had not been in Peterhead since 2003 nor had he spoken personally to any of the petitioners. He supposed that his comments on psychological impact could be described as theoretical but are based on the background information referred to in his report. He had no operational understanding of the difference between major and minor spillages as referred to in the logs. He did not consider that the use of the term crowding in relation to a single individual in a room was unique to him. He suggested that the definition of crowding as referring to the prison population compared to the capacity of prison was unique to the UK, known as the certified notional accommodation. However, he was shown the POPPI report to which he had earlier made reference, at paragraph 6 of the appendix to recommendation R(99)22 which was adopted by the Council of Ministers and which said:

"In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set".

He did not know whether other countries adopted this approach to the meaning of overcrowding. The authors of that document understood overcrowding in the way referred to by counsel having written that:

"prison overcrowding is in the strict sense the comparison between the prison capacity and the number of prisoners to be accommodated: it is usually linked to the growth of the prison population."

He agreed that the document did not in fact contain a recommendation on minimum cell sizes, the information referred to therein being taken from country related statements made by the CPT. The report also states:

"Prisons are overcrowded if they contain a greater number of prisoners than the official capacity, or if the official capacity is set at such a high level that each prisoner has insufficient space."

Furthermore they record (paragraph 2.3) that "Prison systems in Western Europe usually aim to allow each prisoner at least 5m". This might refer to doubled up accommodation. It would be consistent with the Home Office standard of 5.5m which he understood to apply to an existing or refurbished single wet cell without crowding. There are different standards for refurbishment and new build, hence the figure of 6.8m which applies to Home Office new builds, although that is also for a cell with crowding capacity, i.e it might be occupied by two people. Both the English and Scottish design standards provide for the provision of an observation point covering the whole cell, including the WC. The 1992 CPT document which he had referred to states that 7m was a desirable standard not a minimum. For all the cells occupied by each prisoner the cell area was over 5.5m as a gross figure.

[172] As to the issue of psychological impact he had spoken with Professor Canter and with other psychologists as noted in his report. These were the same as he had referred to in his report in the Napier case, as was much of the literature, but his attention had in the interim been drawn to some new material which he had also consulted. The primary issue in Napier was the impact of sharing a cell for prolonged hours and the size of the cell was less important, whereas the present cases rely on the size of the cell in relation to his description of a "group of one". He acknowledged that the literature quoted by him looked at a "true group" where an important point related to the privacy implications of sharing a space, but in taking account of the literature he ignored privacy issues as they did not arise. He applied these papers to the situation of single occupancy and said that it was difficult to tell whether the authors of the papers would have done so or not as they do not refer to single cells. When it was suggested to him that much of the text of his reports in the present cases were identical to that in his report in Napier, although the context was different, he said that what he did was look at his original reading of the literature to see whether he still agreed with the judgements made and quotations used. He said that the amount of background research which is relevant is very limited and has not significantly changed since Napier. In Napier he used the term crowding to refer to a group of 3 or more. He acknowledged that some papers were quoted in his Napier report highlighting the importance of privacy but did not accept that he had quoted these out of context. His conclusions remained valid. In his view his quotations were "selective according to their relevance". In both reports he had quoted a passage from a paper by Ittleson and others thus:

"Its (i.e. the social phenomenon of crowding) conceptualization as both a concomitant and a consequence of modern life goes beyond the question of the number of persons in an available space. How the space is organized, for what purposes, and what kinds of activities are involved are all factors that contribute to the phenomenology of crowding".

In the present case he then says "I interpret this comment as applying to a single cell which is perceived, or defined as, crowded."

[173] The same passage was quoted in Naper in which he then said:

"Although it is in the context of an office, their drawing attention to the very important problems that arise when a person is asked to share a space with another, is highly relevant to a shared prison cell."

He did not see any inconsistency in these interpretations of the same quote. A passage in the same paper suggesting an increase in illness complaints as the number of men in cell increased was not relevant. He went on to say that a lot of the Napier report concerned cell sharing which was not relevant here but it does not mean that the question of privacy does not arise in the present case as several have complained about the spy holes and the issue of privacy is also relevant to conditions outside the cell.

[174] The conditions of the prisoners in the present case were much better than Napier from a privacy point of view. He accepted that there were practical ways, under reference to the evidence which they gave about the hobbies followed in the cells, or the use made of them, of showing that the privacy of the cell is of considerable benefit to these individuals. He was aware of a recommendation that prisoners should have at least 8 hours out of their cell as a means by which in or out of cell time might be judged.

[175] Professor David Cook is Professor of Forensic Clinical Psychology in the Department of Psychology, Glasgow Caledonian University, Adjunct Professor in the Department of Psychology at the University of Bergen and Honorary Clinical Psychologist in the Directorate of Forensic Mental Health of NHS Greater Glasgow and Clyde. In his professional career he has carried out a range of research in relation to prisons in Scotland and elsewhere, including into the rate, nature and potential causes of psychological disturbance in prisons. His work has included research into violence in prisons and the contribution of both psychological and institutional factors to that. His interest in this field goes back to work in which he was involved in the Special Unit at Barlinnie when an explanation had to be found for the fact that very violent prisoners stopped being violent when they were moved, which suggested that the place to which they were moved was having an influence. His work identified situational factors which might be relevant, including policies, procedures, management strategies, staff characteristics including training, attitudes and morale as well as the level of staffing. Physical factors were also identified e.g. the nature of control and the nature of security in the institution and the approaches used to identify and manage those at high risk of violence. With others he had developed a procedure for systematically assessing institutions on this basis. He was not clear what was meant by the term "environmental psychologist" which he considered was not a term generally recognised in the profession. He was not aware of a faculty of environmental psychology or any division or interest group under that name within the British Psychological Society. From Professor Canter's own descriptions and form his comments that "environmental psychologists" do not deal with individuals who are "mentally disturbed" the witness questioned the extent to which Professor Canter was qualified to opine on matters relating to mental distress and stress.

[176] Clinical psychologists are well used to considering environmental factors, when relevant and measurable. Both clinically and otherwise in research he had occasion to have regard to environmental factors and had developed ways of assessing those factors in prison which were important to the risk of violence. His research had involved looking at predictors of stress and distress within prisons. His CV, contained in 7/26 of process, suggests to me that he is eminently qualified to address the issues which arise in this case in relation to the psychological impact of conditions on prisoners. In 2002 he was awarded a grant for a study entitled "Institutional Violence: A systematic review and meta-analysis of the impact of situational factors on violence". This looked at a range of variables, including crowding, the quality of the environment, the nature of the building, the amount of light, the cleanliness and other structural factors as well as staff issues such as training, morale, attitudes and staffing levels, and policy issues within the organization. In 2003 he was awarded a grant for a study called "Institutional Violence: The Development of an Empirically Informed Risk Assessment Guide". He has visited Peterhead often but when he used to go for special unit purposes it was to a separate segregation unit and otherwise the often saw people in the surgery so he could not really comment on the change in regime. He visited three times in 2010 when he walked through the halls and was taken by the apparent quality of relationships between staff and prisoners, which seemed much more relaxed and informal than he recalled before. It is fairly well established that staff/prisoner relations are critical in relation to violence and to mental health more generally. The way prisoners and staff related seemed positive and non threatening. He was interested to observe that although there was the opportunity to sit and eat in the middle of the hall prisoners took their food back to cells.

[177] He interviewed all three petitioners and found no trace of any clinical condition. He also considered whether they had any symptoms of disorder falling short of a clinical condition. Stress in this context has both an inte
rnal and an external aspect. The stressor is an external event but it is mediated through the individual and may result in certain consequences. Self esteem - low or high - can be relevant to a number of psychological conditions. It is something which is capable of measurement using standardised procedures but assessment is problematic and it is important to identify what one is addressing by reference to standard definitions. In his report Professor Canter considers certain aspects of prison life and relates these, at a general level, to what he considers to be the impact on certain psychological characteristics e.g., "worthwhile individuality", "diminished self-esteem", "stress" or "distress". It is difficult to know what he means as he is not referring to a standard definition. His references to self worth, sense of identity and similar considerations may well be valid areas of psychological enquiry but these are not established or scientifically validated psychological terms and he does not indicate how he measured or assessed them. They are essentially lay descriptions the meaning of which is unclear. In any scientific discipline the application of standard criteria is important to ensure agreement on key terms. Psychologists usually try to define terms so they can be replicated and should use criteria which are publicly observable, defined and have inter-rater reliability.

[178] He could find no evidence that Professor Canter had considered contemporary records that may have contained information relevant to the petitioners' psychological conditions. He attempts to define what might be considered stressful by taking into account the individual prisoner's response to his situation: relying on such a subjective appraisal is problematic when it comes to assigning causal significance to the link between a putative stressor - specific prison conditions - and psychological disturbance. It is circular to use an approach which depends on the individual prisoner's subjective appraisal of his situation. Subjective appraisals of events or situations are frequently misleading. One must separate out what is stressful from the person's reaction to that to identify what way the relationship is going - for example, from stress to depression or vice versa. When subjective information has to be assessed as part of an overall picture one can cross check in a number of ways - by reviewing file information, by talking to others who know the person well, across time by seeing them more than once, and by checking behaviour with the account to see if there is consistency. The lack of a clear approach to the assessment of the putative stressor and psychological outcomes means that it is not possible to assign causal significance to events or circumstances.

[179] One of the great challenges for psychology is to make the inferential leap from studies about groups to the understanding of an individual. This is known as the grouping fallacy, going from the actuarial to the specific:

"If we assess a group as having a level of psychopathic personality disorder we know they will reoffend more than a group without such a disorder; it does not make us decide that a given individual who is psychopathic will offend."

Without a clinical assessment of psychological health he could not understand how Professor Canter could form a view that the petitioner's might have had extremely adverse reactions to particular prison conditions.

[180] A further concern was that Professor Canter did not seem to have considered other explanations for any psychological condition which might exist for example, malingering, a pre-existing condition or other stressors in the petitioners' lives. The first of these should be ruled out and tests exist designed to identify malingering or exaggeration. The second needs to be examined to confirm that the putative stressor predated the condition, not vice versa. The pre-existence of the sort of factors to which Professor Canter made reference is a plausible hypothesis for reasons which Professor Cooke states in his report 7/25:

"First, many of the psychological experiences discussed by Professor Canter are aspects of self-esteem; and self esteem is frequently regarded as being a 'trait' (Baumeister, 1997). In psychology a 'trait' is regarded as an enduring characteristic or disposition that gives rise to characteristic patterns of thinking, feeling and behaving. While there is some debate over the stability of this trait, Baumeister notes 'Most studies have found it to be quite stable across time' (p. 688). Secondly, diminished self-esteem has been linked in longitudinal studies to criminal careers; adolescents with lower self-esteem are more likely to become criminal (Trzeniewski et al 2006)."

[181] One would want to compare how the person is now over how they were over a long period, to identify the time of onset, and see whether the putative cause occurred before that or after. If you are trying to establish whether a condition is related to an event it is necessary to identify when the event occurred and when the onset was, to examine the relationship between onset and cause. It is necessary to demonstrate temporal priority.

[182] Consideration requires also to be given to other stressors which might be present. This would include consideration of life events and chronic long term difficulties in their lives both within and outwith prison. For example, Mr Greens reported significant marital difficulties; Mr Stanger reported that he believed that he was wrongly convicted; and Mr Wilson reported that he was suffering from the after-effects of the deaths of both an aunt and a grandmother. Additionally, it is generally recognised that the process of imprisonment is an inherently stressful event for a variety of reasons, including loss of liberty, loss of autonomy, deprivation of goods and services, and fear for personal security. The challenge is that the possible number of stressors is substantial and even if a recognisable and valid psychological condition had been demonstrated there is no scientifically defensible way of determining which particular stressor - or sub-set of stressors - can be shown to have caused that psychological condition. Memory is known to be unreliable and is subject to recall biases. Hence a term "effort after meaning" used to describe the impact of new experiences on the form of old memories. Events which occur after a memory has been "laid down" will affect the recall of that memory. In the 1950s, when people did not know the cause of Down's syndrome, mothers of affected children reported on interview many more "shocks" in pregnancy than other mothers. It is now known that the cause is a chromosomal abnormality but they were searching for an explanation for their child's condition. If a person feels depressed he might search his memory and over interpret things as the cause of his depression; something might take on a greater significance in the persons mind than it might actually merit. It can also be something in the present which does so.

[183] Professor Cooke also disagreed with Professor Canter in respect of the interpretation of research material relating to the interaction of stressors. In his report Professor Cooke states, in relation to the interplay amongst stressors:

"It is essential that each stressor is clearly defined and measured independently: I am not aware of this ever having been done within the literature on stress in prison. Professor Canter does not provide evidence based on clearly defined stressors and his observation that the synergistic manner in which stressors supposedly work has been 'established' by the literature is, in my opinion, not the case."

[184] He considered that the issue of interaction amongst putative stressors, which Professor Canter described as being multiplicative, is not as clearly established as he suggests. He suggests if there are two factors the effect is magnified more than twofold. Professor Cooke could not find any scientific basis for that and said that the paper on which Professor Canter relied for that assertion concluded that the problem is unresolved and that there is a great need for more research on the interactive effects of environmental stress. Professor Cooke said that he could accept as a generality the notion of a "perception of place" but not that it would necessarily lead to psychological difficulties as it is necessary to consider both the individual and their situation. When considering the psychological well being of someone he would look at the regime as a whole, not just the cell. If one takes the range of factors being considered the consensus would be that human relationships are more critical than the physical environment. When talking to prisoners they say that what winds them up is how they are treated by other prisoners or staff. Looking at Peterhead at that level the relationships seemed much more relaxed than he had seen for a long time. There has been a general trend in Scottish prisons for the last 15 to 20 years to change the relationship between prison officer and prisoners. Even looking at the concept of a cell on its own, it was relevant that all the prisoners he saw were going back to their cells with food, suggesting that they were comfortable to do that or they would eat in another setting.

[185] In interviewing the individual prisoners Professor Cooke was looking for symptoms in two categories - neurotic disorders like anxiety or depression and whether they had anti social personality disorder. He was looking at whether they were depressed, had poor appetite, ruminated in a negative way on their situation, whether their sleep was disturbed, whether they had panic attacks or were afraid to go out or to mix with others, how they felt about themselves and whether they had thoughts of self harm or violent thoughts.

[186] None had symptoms to any significant degree. As far as self esteem is concerned he thought they were very average, neither particularly high nor particularly low compared to other prisoners he has interviewed. One indicated he had low self esteem starting before he went to Polmont and said his self esteem was low at that point. Another one also used that terminology but it suggested onset before being in these conditions and it could not be said that the conditions in Peterhead caused it, if he did have low self esteem.

[187] In cross examination he accepted that he came from the perspective of a clinical psychologist who is used to identifying pathological psychological conditions whereas the court is involved in the exercise of considering whether conditions of detention amount to degrading treatment, in which context the conditions of detention are critical. Approaching the matter as a clinical psychologist he would be interested first in whether there was evidence that a person's self esteem was diminished then move on to whether there are circumstances which might have contributed to it. The word of the individual would be only part of it: he would observe them and think about what they were saying. If somebody says that particular conditions made him feel humiliated, for example, that would be an indicator, that his self-esteem was in fact lowered by those particular conditions but one would want to see other evidence relating to self esteem. Greens spoke of lowered self esteem before being in Peterhead and if he went on to say that particular conditions caused him to feel humiliated the possibility that his self esteem was further lowered would need to be explored. If Stanger spoke about anxiety at the thought of slopping out despite having developed strategies to cope with his incarceration it might suggest that these strategies were not being totally effective. Prisoners concerns about the risk of being looked on or walked in on when using the porta potti could have an impact on staff-prisoner relationships but it would be one aspect of many and it is difficult to generalise. Equally staff do not want to observe that either so they have techniques like making loud noises before they come in or banging on cell doors to try and obviate the risk of embarrassing themselves and the prisoners.

[188] Professor John Coia is a consultant clinical microbiologist in Glasgow and director of the Scottish Salmonella Reference Laboratory. He is an honorary clinical senior lecturer at the University of Glasgow and deputy director of the Scottish Reference Laboratories at Stobhill. He is an Honorary Professor in enteric zoonoses in the Institute of Comparative Medicine at the University of Glasgow. He has published articles with specific interest in infection control and gastrointestinal infections. His CV is 6/54 of process. He prepared two reports on the infection implications arising from in-cell sanitary arrangements in single occupancy accommodation in HMP Peterhead, 6/37 and 6/38 of process. He visited Peterhead in 2006, visited more than one hall, various cells and spoke with some prisoners. The slopping out process had been completed when he arrived but he was shown the emptying of a porta potti. He said there was what he would describe as a "faecally" odour. His report explains that transmission of infection requires three things: a source of infection, a route of transmission and a susceptible host. In this case the potential source of infection consists of the urine and faeces of inmates. Human bladder urine is generally sterile and generally the risk of infection therefrom is low. Human faeces are host to many bacteria, many of which are normal gut bacteria which would be unlikely to pose an infection hazard from ingestion in normal immunocompetent adults. However the gut may play host to a wide range of pathogens capable of producing gastrointestinal disease for example, salmonella enteric, campylobacter species, shigella species, E coli 0157, Novovruses and hepatitis a.

[189] There is a reasonable probability that prisoners entering a prison could be harbouring one of these pathogens within their gut, and thus excreting the organism in faeces. Transmission of gastrointestinal pathogens is usually by the faecal-oral route due to the contamination of food and fomites with faecal matter or faecally-contaminated fingers. A fomite is any inanimate object which can be contaminated and can act as the source of transmission. The active ingredients of the chemical disinfectant would have reduced the infectivity of the faecal material but may not be effective in killing all pathogens. The degree of disinfection may be influenced by the effective concentration achieved, the degree of penetration and the contact time.

[190] The normal means by which such transmission is prevented is by the provision of a flushing toilet, which helps to contain and remove faeces. The main control measure is the toilet which is normally housed in a cubicle because of the risk of aerosolisation from diarrhoea. In this case if a prisoner had diarrhoea there would be the potential for contamination of the adjacent environment including the work top where meals were consumed and any crockery there. Contamination of the hands with faecal bacteria, which inevitably occurs after wiping, even with the use of toilet paper, is dealt with by washing hands with soap and fresh (and preferably hot) running water. Proper handwashing requires the availability of adequate quantities of running water. The handwashing facilities within the cell were extremely limited and would have increased the chances that small traces of faeces could persist on the fingers. In a basin with a source of running water the dilutional effect of washing hands is continued whereas a flask presents a much lower volume water resulting in a stagnant bowl of contaminated water in which bacteria could multiply. The facilities fall short of SPS own Control of Infection Guidelines. An infected person would not be a danger to himself. Within the cell there is no risk to that individual but there is a theoretical possibility that third parties could touch surfaces on which organisms remained viable in which case there would be the potential for risk if he were to eat food without washing his hands. His attention was drawn to paragraph 68 of a report by Professor Leonard 7/3 which states:

"Handwashing with plain soap and water for 15 seconds reduces the bacterial counts on the skin approximately 10 fold, whereas washing for 30 seconds reduces counts by approximately 100 fold (2). These reductions in bacterial numbers represent the reduction in the normal flora of the skin, and of course, occurred using running water. The use of a bowl of water will make the process less efficient, although in my opinion, not to such an extent as to make a significant difference to the efficiency of hand washing post defecation, as it is the ability to remove transient bacteria from the hands that is the issue and these transient bacteria are loosely adherent to the skin. If a healthy individual who is passing normal formed stools used soap and water after performing the toilet, this would be sufficient to remove any transiently adherent organisms from the hands such as to negate and manage any theoretical risk of infection."

[191] One can say to someone who has had an illness you can go back to work if passing normal stools and there is adequate hand hygiene which needs running water. He agreed about the reduction in bacterial count but noted that no reference was given for the assertion that using a bowl would not reduce the efficiency. The fact of a limited volume of water with a stagnant pool of water would reduce the efficiency. There is a risk that traces would remain on the hands with the potential for contaminating other surfaces creating a potential source of contamination for others.

[192] Research into the level of dosage required for infection is to some extent being questioned. For many of the relevant organisms the estimate would be 10 to 106 and some have proposed a "single-hit" hypothesis. In any event, the Novovirus is one recognised as requiring only a low level dose for infection to follow. One could not guarantee that a normal "social handwash" (washing hands and wrists under running water for 15 seconds) would eliminate risk from novovirus but it would reduce the number of organisms present. In the cell the result would not be the same as the water is held in the basin and there is a limited amount of water to remove the organisms. Even if removed they will remain in the basin. Within the cells the use of chemical toilets as opposed to e.g. chamber pots, would have afforded a greater degree of physical containment, and some degree of disinfection. However, this would neither have removed the risk of environmental contamination, particularly from the aerosolisation of diarrhoeal faeces, nor have impacted the lack of adequate handwashing facilities within the cell. There would thus have been an increased risk of contamination of the cell environment, although this would not have increased the likelihood of the prisoner developing any new gastrointestinal infection. Under the pre-2007 regime it is possible that contamination of prisoners clothing or even ingestion of faecally-derived material could have occurred, but if spillages were dealt with appropriately and promptly, and appropriate personal protective equipment was available and utilised, any potential risk would have been very low. The regime change would have served to mitigate this small residual microbiological risk.

[193] In cross examination he accepted that since the infective does for novovirus was so small it would be impossible to eliminate that risk, hence infection of this type is found in places with adequate handwashing facilities such as cruise ships and hospitals. So far as aerialisation is concerned the difference between a flush toilet and a porta potti lies in the screening and any reduction of risk would depend on the degree of screening. The risk would be contained if prisoners tended not to go into each others' cells on a regular basis. A person who had infectious diarrhoea might contaminate the screens in toilet areas to which all prisoners have access. It can also be contained by proper handwashing when out of the cell and by washing hands before eating. A social handwash of 15 seconds under running water is what should be carried out in all situations but the time people take does vary and the extent to which it was done in practice may be another thing. He had no specific knowledge of outbreaks of novovirus in Peterhead in 2004 or 2006 but he was aware that there was a new strain of novovirus in about 2006. It was possible that an outbreak of campylobacter was caused by bird faeces entering soya milk kept on a window sill. The absence of any reported outbreaks of novovirus since 2006 does not mean that there have been none as it is one of the most under-reported of events.

[194] Professor Alistair Thomas Leanord is Honorary Professor in Infection and Immunity at Glasgow University and a consultant medical microbiologist and infection control doctor at the Southern General Hospital, Glasgow. His specialist clinical field is medical microbiology, including infection control. The laboratory he serves is one of the largest microbiology laboratories in Scotland and he chairs the Scottish Infection Research Network. His CV can be found at page 21 of 7/3 of process.

[195] He visited Peterhead in June 2010 in the company of a nurse consultant. He had done so on a prior visit in 2006 and found it useful to have a second person present. A nurse consultant has experience in this area but their background is slightly different so they bring a different perspective. Whilst he is talking the nurse consultant can be looking around to see if what he is being told is actually happening on the ground. The primary objective was to see the slopping out process in B and C Halls although they visited all the halls. They were in the prison from about 0730hrs to about 1400hrs and spent about half an hour observing the slopping out process. As far as he was aware the hall doors were locked and there was no air extraction in use. There was a well organised 4 man team in C Hall which took adequate precautions, used a flat bed trolley for transportation and looked very slick. They wore PPE commensurate with their roles in the team. A two man team in B Hall was not so well organised: they used manual handling rather than a trolley which gives rise to handling and spillage issues. Although they wore PPE such as overalls, plastic apron, gloves and gauntlets they were not wearing face or eye protection. They said it was not compulsory and they chose not to wear it since they felt their practice was such that there was not a risk of facial splashing. The use of face or eye protection is a counsel of perfection: with adequate care and attention such that obvious splashing and careless decanting was not an issue, protective clothing was sufficient protection. He noted that the prisoners are required to wear protective clothing to a level greater than that required in a healthcare setting where the risks presented are significantly higher. The process in C Hall was quite tightly and well controlled by an experienced team well used to working together and there was no splashing. In B Hall they were decanting fewer toilets and were not as well organised in that they had a couple of toilets stacked at the entrance, whereas in C Hall it was one in one out, but they were again experienced and careful with decanting. He saw no splashing. He was standing within feet of the process and there was no apparent odour in either hall. He said that faecal odour is very noticeable and apparent and a little goes a long way but there was none. The tight seal round the chamber of the chemical toilet and the use of the blue chemical would help control any odours. During the visit they went into two cells and there was no noticeable smell there either. He gained no impression of smell as he went round the prison.

[196] During his visit in 2006 he did not observe the whole slopping out process but a few porta pottis had been held back for him to see how the process worked. He thought the prisoners were not wearing PPE. They went through what seemed to be a standard process with no obvious splashing nor any bad odours.

[197] Urinating into a porta potti placed in a cell does not represent an infective risk. Moreover, the use of a porta potti for defecating, where a normal formed stool is passed into the lower reservoir containing a disinfectant and where the waterproof seal is replaced as per normal usage constitutes no infective risk. The exception would be someone who has recovered from an infective diarrhoea who will still harbour low levels of the organism for a couple of weeks. There is no risk to the individual himself and the risk to others is theoretical rather than real. The disinfectant will not have an impact on the body of a naturally formed stool but would be active against any organisms that became detached from the stool and were floating freely in the liquid reservoir. Professor Coia is right to say that when a person has infective diarrhoea the risk to others would occur during the slopping out process when the chance of splashing could occur. Professor Leanord's opinion was that splashes would contain disinfectant to a certain degree which would mitigate their infectious nature but to what degree is impossible to say. If urine is splashed on floor the risk is nil and if organisms were free floating in the urine the action of the disinfectant would have inactivated them. Equally a normal formed solid stool does not present a risk. There is a risk to third parties from infectious diarrhoea but this commonly requires a vehicle for infectious transmission, generally a food substance. The use of a porta potti for defecating whilst symptomatic with diarrhoea allows for the potential formation of aerosols and the contamination of the surrounding environment. In a fully enclosed toilet area the aerosol effect would still be there and would contaminate the surfaces of the cubicle, although there is a greater risk of a third person touching something in a cell than of using an enclosed toilet in someone else's cell. From a practical point of view the most common route of transmission of infection is one involving an intermediate vehicle of transmission, such as food. A prisoner need not be concerned that his flask will be contaminated by his touching it: he is in natural balance with his own bacterial organisms and there is no risk to him.

[198] Professor Leanord's visit to Peterhead in 2006 was with a view to identifying the source of the outbreaks of novovirus which had occurred in 2005 and 2006. Novovirus has a very high transmission rate and it is the airborne germs which cause the risk - no vehicle is required. Once it enters any institution there will be an outbreak regardless of the nature of the sanitary conditions, although it might be possible to mitigate the extent of the outbreak by infection control measures, including isolation. The sanitary conditions will not affect the initiation of an outbreak. In 2005/2006 a new strain of the virus swept Europe. Hand wipes, both non-alcoholic and alcoholic are ineffective in the event of a viral outbreak. Although alcoholic ones would be more effective in the event of a bacterial cause, this is not an adequate method of hand hygiene. Imperfect as it is, running pumped water into a receptacle and using soap would be a far more effective method of decontaminating hands. Running water into a basin and then disposing of it would be the ideal, but the method in the cells would in his view reduce risk of transferring organisms to other surfaces as they are transient and easily removed from the hands.

[199] Having looked at Professor Coia's report he concluded that there were very few differences between them. One area where they might disagree is whether or not the hand washing process is adequate. Professor Leanord accepted that the hand washing facilities are imperfect but these organisms are transient, loosely adherent and easily removed. In addition, if there were a means of washing the hands with running water prior to eating the risk would be removed. His view on the risk from the handwashing process has not changed between 2006 and 2007. However, since 2006 the risk of transmission of infection from the slopping out process has been greatly reduced by the commencement of the sanitation team work process. Functioning as it does the risk is essentially removed unless there were a major failure of the system such as a dropped porta potti. The key change is the use of a team with responsibility for safe emptying of the reservoirs and the level of care which that brings. He would have judged the risk of contamination under the previous regime as possible but it comes down to a question of degree. There is a big difference in terms of infection control between something which would constitute contamination and minor splashes with disinfective property still active therein. He could not quantify the risk without having seen the process.

[200] Gastroenteritis is a fancy name for infectious diarrhoea. He was told by health centre staff there had never been a bacteriologically confirmed case but later that day serendipitously they had a confirmed case of campylobacter. The working hypothesis was that this was as a result of bird faeces getting into milk on window sill. He accepted that the amount of infectious diarrhoea that gets reported is the tip of the iceberg.

[201] In cross examination he accepted that there would be a risk if formed stools containing infectious organisms had been spilled on the floor and that it was possible for a third party touching an infected surface to be infected by the faecal-oral route. There was also the theoretical possibility of aerosol effect during the emptying process, depending on how vigorously it was done but the possibility of splashes was more likely. Not knowing exactly what is in Elsan blue it is impossible to say whether after a certain period of time the effectiveness has decreased by a certain level. Excessive dilution might reduce efficiency. He recognised that the handwashing facilities were basic and less efficient than using running water. There would be an increased risk that bugs were not removed. However, he was not convinced it would increase the risk of infection because in most common types of bacteria there would need to be frank faecal soiling in a measure somewhere between a large pea and a small malteser which would not be missed. "Single-hit" bugs were different and one can take the view that a single organism might be enough to infect or one can take a more pragmatic view, recognising that handwashing is in any event of limited effect, and that there have never been bacteriologically verified outbreaks of shigella, campylobacter or E coli in Peterhead, apart from the one prisoner. The incidence of novovirus in 2005/6 can be explained by the new virus which was prevalent at that time. His conclusion that the efficacy of the handwashing process would not be much affected was taken from first principles. There would be no chance of eliminating norovirus during a social handwash.

[202] Both sides prepared written submissions and supplementary submissions. In total these ran to about 350 pages and accordingly I do not propose to attempt to summarise them all. For the same reason I do not intend to refer to every case to which I was referred. I will set out the main legal arguments; otherwise the nature of the submissions should be reasonably clear from the discussion part of this opinion.

Petitioners - Article 3
[203] Article 3 ECHR provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Conditions of detention must be compatible with respect for human rights and must not subject prisoners to distress or hardship of an intensity beyond that unavoidably inherent in detention. To come within Article 3 ill-treatment must attain a minimum level of severity, assessment of which is relative, depends on all the circumstances of the case and must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Account has to be taken of the cumulative effects of the conditions, as well as of specific allegations. Relevant factors include cell size and space, overcrowding, the opportunity to use the toilet in private, availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements, the nature of the prison regime and the length of detention. Damage to physical or mental health is not required if the conditions complained of are such as to diminish the applicant's human dignity and arouse in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance.

[204] Failure to take steps to improve objectively unacceptable conditions of detention may itself connote a lack of respect for Convention rights and even a willingness to improve the conditions cannot exculpate prior incompatible events. Cenbauer (2007) v Croatia 44 EHRR 49. Conditions breaching Article 3 cannot be justified by lack of resources.

[205] As regards cell size the ECtHR has stated that it cannot decide, once and for all, how much personal space should be allocated to a detainee. However the Court has had regard to what it understands to be the CPT's recommended standards, namely no less than 4m2 for a single inmate in multi-occupancy cells; 7m2 per detainee in single occupancy police cells; and 9m2 in single prison cells. Davydov v Russia; UNMIK Report re Kosovo. These were also relied upon for the assertion that the former distinction between remand and correctional facilities must be doubted or at least confined to Russia. Where cell size is not in itself incompatible with Article 3, it may be compensated for by a sufficient out of cell time and activities. The adverse impact effect of inadequate space may be increased by deficiencies in heating, ventilation, lighting and general state of repair.

[206] Since 2001 the ECtHR has consistently found violations of Article 3 where a detainee has been subjected to the humiliation and embarrassment of relieving himself in a bucket in the presence of others and of being present while the same bucket was being used by them, except where allowing visits to sanitary facilities would pose concrete and serious security risks.

[207] Concepts of inhuman and degrading treatment have evolved considerably since the Convention came into force and acts which in the past did not fall within Article 3 may now be seen as incompatible with it. Reflective of these rising standards, the ECtHR considers that even where a detainee is accommodated alone in a cell, subjecting him to having to relieve himself in a bucket is a breach of Article 3: Malechkov v Bulgaria. Certain basic amenities are indispensable for cells for extended detention, which require to have access to natural light or air, and to a toilet and sink. Tadevosyen v Armenia App 41698/04 2 December 2008; Kirakosyan v Armenia App 31237/03 2 December 2008. If access to proper facilities is allowed on demand no violation arises.

[208] This Court must take account of the case law of the ECtHR, but also (a) commonly accepted international standards in member states of the Council of Europe; (b) the work of the CPT; (c) international standards under the auspices of the United Nations; and (d) any consensus of learned and informed opinion within the United Kingdom on the acceptability or otherwise of the conditions complained of.

[209] Counsel then summarised this material consisting inter alia of the reports referred to in the preliminary part of this opinion and in the evidence of witnesses, in particular Professor Coyle and Professor McManus. He said that the available materials and evidence suggest an informed, consistent, international consensus, from no later than 1991, that (a) it is inherently degrading to deny a prisoner proper access to sanitary installations when necessary and in clean and decent conditions; (b) the degradation is increased where he is also required to slop out his urine and excrement into a communal sluice, in the presence of others; (c) the process remains degrading whether or not the prisoner is accommodated in a single cell and thus spared the further humiliation and embarrassment of having to relieve himself in the presence of another; (d) that the process remains degrading notwithstanding the use of porta potties rather than chamber pots, and indeed the use of 'sanitation.

[210] Counsel then referred to domestic case law: Napier v Scottish Ministers 2005 SLT 1113, Callison v Scottish Ministers unreported, Lord Drummond Young, 25 June 2004; Re Karen Carson [2005] NIQB 80; Martin v Northern Ireland Prison Service [2006] NIQB 1 and Mulligan v Governor of Portaloise Prison & others [2010] IEHC 269. He acknowledged that the courts of this country had to keep pace with Strasbourg Jurisprudence not go ahead of it but observed that the fact that the ECtHR has not taken the opportunity to rule on the matter should not inhibit domestic courts from doing so: Axa General Insurance 2010 SLT 179.

[211] In Napier it was held that to detain a person along with another prisoner in a cramped, stuffy and gloomy cell which was inadequate for the occupation of two people, to confine them there together for at least 20 hours on average per day, to deny him overnight access to a toilet throughout the week and for extended periods at the weekend and to expose him to both elements of the slopping out process with a chamber pot, to provide no structured activity other than daily walking exercise for one hour and one period of recreation lasting an hour and a half in a week, and to confine him in a 'dog box' for two hours or so each time he entered or left the prison was a breach of Article 3. Counsel recognised that this represented more extreme conditions than the present case. Callison was a case relating to use of a porta potti in doubled up accommodation in which it was decided that there was no prima facie case under Article 3. Counsel submitted that this decision could not be supported in light of the Strasbourg jurisprudence and that the respondents accept that doubled up slopping out is a breach of Article 3. The case was decided on the motion roll on an application for interim measures and was not a case in which evidence was heard. In Karen Carson there was a 24 hour unlock facility with a maximum wait time and the prisoner rarely had to use the porta potti so it could be distinguished from Napier. In Martin there was an overnight unlock system which enabled most of the prisoners most of the time access to night sanitation so whilst it was not conceded that the decision was correct, it could in any event be distinguished. Mulligan was a chamber pot case with evidence of primitive ventilation, health risks from slopping out, specific health problems in the form of haemorrhoids and a residual anal fissure but a relaxed regime. The decision that there was not a breach of Article 3 was heavily criticised by counsel on the basis inter alia that it failed to regard developing standards and relied on outdated jurisprudence.

[212] In conclusion counsel submitted that in the present case there was a breach of article 3 taking into account the sanitation regime, the length of evening and weekend lock up, the cell sizes, the ventilation, lighting and lack of privacy screening. In addition in the cases of Wilson and Greens they both worked as sanitation passmen and Wilson was affected by "bombing" when on the ground floor of A Hall. The conditions were capable of giving rise to feelings of anguish and inferiority which might foreseeably be capable of humiliating and debasing the individual and possibly breaking his physical or moral resistance, thus constituting a breach of Article 3.

It will be seen from this recital of the submissions that the case of Malechkov was advanced as an important case for the petitioners. It was originally suggested by Professor McManus, that this case was one in which the court had effectively decided that single cell occupation without in cell sanitation was itself a breach of Article 3. This was based on para 140 in which the court observed that:

"... despite being accommodated alone in a cell, subjecting a detainee to the inconvenience of having to relieve himself in a bucket cannot be deemed warranted, except in specific situations where allowing visits to the sanitary facilities would pose concrete and serious security risks".

[214] In fact, from a fuller reading of the case, in particular paras 141 and 147, it was clear that the court based its decision on the cumulative effect of an unduly strict regime and the material conditions. In addition to having to relieve himself into a bucket the prisoner was confined alone in a cell for practically 24 hours a day during more than four months with no exposure to natural light nor any possibility for physical and other out-of-cell activity. In paragraph 146 the court said that the treatment went beyond the threshold for Article 3:

"having regard to the cumulative effects of the unjustifiably stringent regime to which the applicant had been subjected and the material conditions in which he had been kept".

Mr Burns recognised this, saying that because of these factors the court had not needed to come to a concluded view about having to use a bucket in a single cell. The importance of the case was that the court took the trouble to comment on this particular issue in a critical manner. After submissions had been concluded but before this opinion was issued my attention was drawn to the case of Radkov v Bulgaria (Application No. 18382/05), 10 February 2011. In that case, the complaint was that the prisoner had originally been held in an individual cell measuring 4m then moved to share with other inmates a cell measuring 12.6m with no toilet facilities, sink or running water, allowed to go to the toilet only three times a day, for ten minutes each time, otherwise having to relieve themselves in a plastic bucket which they could empty and clean when going to the toilet. The local court held that having to use a bucket for toilet needs, in a cell measuring around 10m2, without sufficient ventilation, in the presence of others, was a breach of Article 3. Commenting on this the ECtHR said:

"The Court sees no reason to depart from the domestic courts' findings. Although they were apparently referring only to the period when the applicant shared a cell, the Court sees no reason not to extend that conclusion to the time when he was kept in an individual cell. It is true that in Kehayov v Bulgaria it held that:

'subjecting a detainee to the humiliation of having to relieve himself in a bucket in the presence of other inmates can have no justification, except in specific situations where allowing visits to the sanitary facilities would pose a concrete and serious safety risk'.

However, later, in Malechkov v Bulgaria the Court said that:

'despite being accommodated alone in a cell, subjecting a detainee to the inconvenience of having to relieve himself in a bucket cannot be deemed warranted, except in specific situations where allowing visits to the sanitary facilities would pose concrete and serious security risks'".

It concluded that:

"The foregoing considerations are sufficient to enable the Court to conclude that between 8 March 2000 and 27 October 2004 the applicant was detained in degrading conditions in Lovech Prison."

[215] I accordingly invited further written submissions from the parties. Counsel for the petitioners submitted that
denial of proper access to proper sanitation, and the requirement on the prisoner to relieve himself into a receptacle in his cell, was sufficient in itself to breach Article 3, regardless of whether he is required to slop out and whether or not he can adduce any adverse impact on his mental or physical health. Paragraph 140 of Malenchkov is not an isolated statement of the court, it has been expressly approved and applied. A decision of this court favourable to the petitioners would not be a decision which went beyond the jurisprudence of the European court. Proper access to proper sanitation can now be seen as a basic minimum right for prisoners, and sustained, systemic denial of such access is of itself incompatible with Article 3.

Respondents - Article 3
[216] Counsel for the respondents did not dispute the petitioner's submissions as to the requirements for serious ill treatment beyond any element of suffering inherent in a prison sentence, the need for a relativist approach based on all the circumstances of the case, that assessment required to be made of the conditions as a whole as well as any effects on the individual, that the factors referred to for the petitioners were relevant, that cell sizes under 3m have been found to constitute a breach of Article 3, that deficiency in cell size can be compensated for by out of cell time and activities or that the ECtHR has consistently found breaches of Article 3 in doubled up slopping out cases.

[217] The relativist approach required that the meaning of the convention should be uniform across the member states and it is not for Scottish courts to set a standard higher than the ECtHR would apply. The courts must follow the clear and consistent jurisprudence of that court but incidental observations carry less weight. R(Ullah) v Special Adjudicator [2004] 2 AC 323; Cadder v HMA [2010] UKSC 43. However, in the jurisprudence there is no clear authority in favour of the petitioners. No case can be pointed to other than Malenchkov to suggest that denial of access to proper sanitation meets the threshold for Article 3, and even then that is not what the case held. Para 140 of Malenchkov on which the petitioners rely has not entered the jurisprudence at all, far less been established as a clear and settled rule.

[218] In Napier Lord Bonomy had expressed his conclusion on the basis that the conditions could amount to an infringement of Article 3 "in Scotland in 2001". That failed to apply the relativist approach and drew criticism from the House of Lords in R (Wellington) v Secretary of State for the Home Department [2009] 1 AC 335. Addressing the paradox created by categorising Article 3 rights as absolute and at the same time authorising or applying a "relativist" approach, he said:

"43. ... It must, in my respectful opinion, be borne in mind that Article 3 was ..... prescribing a minimum standard, not a norm..................It would, of course, be unexceptionable for the courts of Scotland, or the courts of any other jurisdiction, or their prison authorities to rule that the practice of slopping-out was unacceptable and should cease. But to give that ruling as an interpretation of an Article 3 obligation would, in my opinion, undermine the absolute nature of the obligation in question. It would be unthinkable to rule that in no circumstances could slopping-out in a prison, or comparable institution, be tolerated. Whatever view one might have about the objectionable quality of slopping-out, that view could not, in my opinion, be carried forward into an acceptable interpretation of an absolute obligation in Article 3."

[219] Conditions may fail to correspond to modern expectations or international design standards or may fall "below the minimum acceptable from an ethical and humanitarian point of view" yet not breach Article 3 in the absence of sufficiently serious ill-effects on the individual. Aerts v Belgium [2000] 29 EHRR 50.

[220] Counsel submitted that a distinction has been drawn, and remains, between remand institutions and correctional ones: Visloguzov v Ukraine. The court has also on occasion taken account of steps to alleviate conditions, especially where there has been improvement over time. Iorgov v Bulgaria Application 36295/02 - 2 September 2010.

[221] As to cell size, the ECtHR has drawn on the CPT recommendations of 7m for single occupancy and 4m for multiple occupancy but the figures referred to in Davydov drawn from the UNMIK Kosovo report stand alone and were not even recognised by the petitioners' own expert. The figures are in any event not specified as a minimum but as something to aim for. Cases where space alone have amounted to a violation have usually been where less than 3m is provided and often less than 2m. The cases suggest that the CPT standard is not determinative and the court will usually be influenced not by cell size alone but by the totality of the conditions.

[222] Turning to the issue of sanitary facilities, counsel cautioned against setting a lower threshold for Article 3 than was being set by the ECtHR and referred to the case of Nurmagomedov v Russia application number 30138/02, 16 September 2004 in which the court considered very basic sanitation facilities in a Russian prison. Access to showers were restricted to a few hours each week. There was no sewage system. The toilet was a cesspool in a self-standing structure. It had no heating, lighting, ventilation or water supply. The court noted that these conditions were no different from the sanitation facilities in many rural areas of Russia where villagers carry drinking water in buckets from water-pumps and have toilets in outhouses with sumps. The Court therefore found that this situation was not so unsatisfactory as to amount to a breach of Article 3. In Delazarus v UK Application No 17525/90, 16 February 1993 the Commission rejected a single cell case saying that the fact of being in a single cell must have reduced the difficulties created by the lack of integral sanitation. Primarily the petitioners rely on the case of Malenchkov but the context of this case included cells with no natural light, no windows and dirty bedding. The ratio was based on the cumulative effect of all the conditions not simply the absence of integral sanitation. Para 140 has not entered the jurisprudence of the court which has concentrated on the overall conclusion made in para 141. Such reference as has been made to Malenchkov does not suggest that lack of facilities within a single cell, or even the need to use a bucket, would itself constitute a breach of Article 3. Nor do the cases of Kirakosyan or Tadevosyan relied upon by the petitioners indicate that the ECtHR has concluded that there should be unrestricted access to a toilet at all times. In those cases it was a consideration of the whole circumstances which led to the violation and the court was careful to state that at no point did they have unrestricted access to a toilet, not that access at all times was a requirement. Even when the Court has recognised that sanitary conditions do not meet the requisite standards, it has been the focal factor of overcrowding when combined with other features that has led the Court to conclude the conditions went beyond the threshold of Article 3. For example, in Cenbauer (2007) the prisoner had 2.82m in a shared cell, required to urinate into a plastic bottle when confined to his cell for a 12 hour period and complained about the mouldy walls and dirty condition of the cell. In Grigoryevskikh v Russia App 22/03, 9 April 2009, the prisoner had about 2-4m in cells in a semi basement where there were usually too many prisoners for the number of bunks, a toilet in the corner of the cell with no flush system and unscreened from the main part of the room, with no fresh air or natural light. Again, it was the combination of factors, with the focal factor of overcrowding which was pertinent.

[223] As to the domestic cases, Napier was based on the "triple vices of overcrowding, slopping-out and impoverished regime", something which influenced the court in Callison. Napier was distinguished in Karen Carson on the basis that she had a cell of her own with a much higher degree of privacy, spent a considerable amount of time out of her cell with access to ordinary toileting and handwashing, and the unlocking facility worked well meaning she seldom had to use the porta potti.

Similarly in Martin the court held that the sanitary arrangements had to be viewed in the context of the overall conditions and could be distinguished from Napier because the plaintiff was in a single cell, allowed out of that cell a significant part of the day when he had access to ordinary toileting facilities and there was an overnight locking system which worked well most of the time. Napier was also distinguished in Mulligan where the court considered that the in cell conditions had to be balanced by an overall assessment of the day to day routine and educational and leisure facilities, saying that only in highly unusual circumstances will one single factor be determinative as to whether there has been a breach of Article 8.

[224] There is a consistent line of domestic authority which suggests that Napier was specific to its own facts and is not applicable to single cell cases such as the present. The case law looks to the effect of cumulative vices. The sanitation arrangements in Peterhead may not be as one would wish but there was evidence of a humane regime. In all the circumstances the threshold for Article 3 has not been met.

[225] The case of Radkov did not affect the submissions already made. There is still no clear and consistent line of authority supporting the proposition which the petitioners seek to take from Malechkov. In any event the reasoning in Radkov is not clear and the underlying circumstances show it to have been another case of an unjustifiably stringent regime materially different from the present cases. It was at best a case of mixed detention, - part single occupancy, part double. In such a situation the conditions as a whole are affected by the worst conditions during the detention. It is reasonable to read the case as one involving consideration of cumulative vices, which is consistent with the reference to Malenchkov where the other circumstances relied upon were similar. Moreover, the court refers to the findings of the CPT and it is clear from the evidence of Professor McManus that the CPT has not gone as far as to say that poor sanitary conditions alone constitute a breach of Article 3. Neither Malenchkov nor Radkov address the situation where the whole period of detention is in a single cell and without an impoverished regime. Furthermore, the court should not assimilate a chemical toilet with a bucket.

Petitioners submissions Article 8
[226] The petitioners submitted that esto the court was not satisfied that there had been a violation of Article 3, there was nonetheless a violation of their rights under Article 8. The notion of private life is closely linked with the issues of personal autonomy and development including a person's physical and psychological integrity. A person retains his article 8 rights on imprisonment and any interference must be justified.

[227] In Branduse v Romania App 6586/03 7 April 2009 the court held that a prisoner's Article 8 rights had been breached when he had been exposed over years to the stale air and nauseous stench from a waste disposal site 20 metres from his cell. Although the court may not require to consider article 8 where it has found a violation of Article 3 on the same issue, the ECtHR has not excluded the possibility that the protection of Article 8 might be available in circumstances which do not attain the level of severity required for Article 3. E.g. Peters v Netherlands 21132/93; Raninen v Finland (1997) 26 EHRR 563; Bensaid v United Kingdom (2001) 33 EHRR 10. The court has also acknowledged that different issues might arise under the same facts, requiring consideration under Article 8 as well as Article 3. Orchowski v Poland App17885/04 22 October 2009; Branduse.

[228] Counsel submitted that it might at first be difficult to differentiate those conditions which might fail under Article 3 yet succeed under Article 8, but submitted that a lower threshold applies in relation to the latter, being points on a continuum.

[229] Justification of interference with Article 8 rights can flow from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question. Normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute a violation, but this must be judged against the common standards of the penal policy of members states of the Council of Europe amongst which there has long been a consensus that access to proper sanitation is a basic minimum standard.

[230] In the event of interference with a person's Article 8 rights it falls to the respondent government to identify a legitimate aim to which the interference is directed and to satisfy the court that the interference is necessary in a democratic society, which requires examination of whether the interference complained of corresponds to a "pressing social need" and is proportionate to the legitimate aim identified, having regard to the margin of appreciation. "Necessary" is not synonymous with indispensible, nor does it have the flexibility of "useful", "reasonable" or "desirable". There must be a rational connection between the public policy objective and the means employed to achieve it and a fair balance must be struck between the demands of the general community and the protection of an individual's fundamental rights.

[231] In Napier Lord Bonomy expressed the view that it was self evidence that:

"'private life' includes the conditions in which he has to undertake the particularly personal, regular activities of daily life, such as discharging bodily waste and maintaining cleanliness..."

He concluded that:

"the decision to detain the petitioner in C Hall as it was in May 2001 can be seen as the result of positive choices made by the respondents in the knowledge that there was an urgent need to address slopping out and the prison conditions associated with it"

[232] The reasoning in the case of Karen Carson was flawed, because a procedural approach to the issue of proportionality was taken, an approach held to be mistaken in R (SB) v Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420. Proportionality must be judged objectively. The same flaw undermines the decision in Martin. Moreover the court erred in considering that interference could be justified by minimising it.

[233] In Mulligan the entire substantive consideration of Article 8 is contained in one paragraph in which there is no recognition of the wide meaning of 'privacy' nor of the correct approach to analysing Article 8 claims by considering ambit, interference, legality, legitimate aim or justification. Both Carson and Martin were referred to without recognition of the legal flaws undermining both decisions.

[234] Counsel submitted, under reference to Napier paragraph 79, that denying a prisoner proper access to proper sanitation with the consequences which flow from this is self evidently an interference with his right to respect for his private life under Article 8. The petitioners do not dispute that this was in accordance with the law and it remains for the respondents to point to a legitimate aim and to demonstrate necessity and proportionality. The imprisonment of the petitioners, and the ordinary and reasonable requirements thereof, are plainly directed to legitimate aims, but a systematic denial of proper access to proper sanitation is not, and cannot be seen as necessary or proportionate to these aims. Consideration of this matter requires consideration of the reasons for the failure of the respondents to provide proper access to proper sanitation at Peterhead during the periods in which the petitioners were detained there.

[235] Counsel then reviewed in detail the evidence relating to "the failure to end slopping out in Peterhead between 1991 and 2010" which he said demonstrated not only an unacceptable delay, but a culpable delay. From this he submitted that it was plain that the respondents took a deliberate decision not to address the denial of proper access to proper sanitation at Peterhead in 2002, when they had both the resources and the capacity to do so. By deciding to keep Peterhead open in 2002 they decided that denial of proper access to proper sanitation and slopping out would continue for prisoners at Peterhead, knowing that this would be the consequence of such a decision. They then failed to reverse that decision notwithstanding the clear evidence that without closing Peterhead slopping out could not be ended. The detentions of the petitioners in the conditions which prevailed were positive decisions, deliberately made. That is not to say that the respondents selected sex offenders for particularly adverse treatment. However, they made policy choices which meant that sex offenders would be detained in these conditions. The infringement of the petitioners Article 8 rights cannot be justified and was not 'necessary in a democratic society' for any of the purposes set out in Article 8(2). It was not rationally connected to any pressing social need, nor proportionate to such a need. It did not arise from the necessary and inevitable consequences of imprisonment. By October 2005, at the latest, the continued denial of proper access to proper sanitation and its consequences failed to strike a fair balance between the petitioners' rights to respect for private life, and any conflicting demands of the general community. Indeed there was no such conflict since the aim of ending slopping out as a policy objective is presumably in the interest of the general community.

Respondents' submissions article 8
[236] Counsel for the respondents accepted that prisoners retain convention rights save as qualified by the necessary and inevitable consequences of imprisonment, which themselves affect private and family life in a radical fashion. Nor did he quarrel with the points made in relation to Denbigh, other than to submit that there is sometimes a procedural aspect to Article 8, when due process considerations arise. Cases may fail on the basis that it is not possible to demonstrate proper consideration of the issue when balancing the margin of appreciation. In particular where
careful consideration has been given on a process basis it does at least show that respect for the dignity of individuals has been considered. The general approach of the ECtHR is that it is not necessary to consider a claim under Article 8 where it has already found that the conditions of detention breach Article 3, which is the relevant Article against which conditions of imprisonment fall to be considered. If the detention is lawful and the conditions of detention do not breach Article 3, no separate issue arises under Article 8. The case law confines consideration of Article 8 to discrete issues in prison life such as interference with prisoners' mail, prevention of contact with family and intimate body searches. The petitioners do not rely on any case where, on a finding that there has been no breach of Article 3, the court has gone on to consider whether there is a violation of Article 8 in the context of general prison conditions alone. Of the cases relied upon by the petitioners, Taskin concerned severe environmental pollution, Branduse also related to pollution and it is to that matter, not the general conditions of detention, that Article 8 was applied. The hypothesis that if the totality of the conditions complained of did not breach Article 3, there could on some unspecified lesser standard be a breach Article 8 is misconceived.

[237] In the present case it was not clear what was the basic right being relied upon. It has been variously put as the right to have access to a proper toilet, a right not to have to slop out, with a wide range of potential solutions being suggested. The petitioners are seeking to advance a positive obligation on the respondents to provide one form of sanitation to be put into place instead of another. Counsel submitted that there is no positive obligation on the state to provide one form of service as opposed to another. The fact that a positive obligation is under consideration is important because in such a situation the threshold for Article 8 operates at a level not far removed from Article 3. Reference was made to Shelley v UK (2008) 46 EHRR SE16. In Anufrijeva v Southwark London Borough Council
[2003] EWCA Civ 1406
it was recognised that Article 8 was capable of imposing on a state a positive obligation of support but noted that:

"We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3."

The court went on to say that:

"... in considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence."

[238] It would not be appropriate, on the evidence in this case, to proceed on the basis that there has been a "culpable delay" as suggested by the petitioners. This matter was not put to Mr Pretswell and some of the material which the petitioners seek to extract from Napier is not germane to Peterhead or these cases. The severity of the consequences or any prejudice to the individual are relevant factors and seem to have been decisive in Callison where it was approached as a matter of degree. The cases of Taskin and Branduse can both be distinguished because the conditions in this case did not meet the standards for environmental nuisance which would be needed under Article 8. It would be necessary to show conditions which were potentially damaging to health before this could apply. Properly understood the issue in this case comes within Article 3 not Article 8. None of the authorities deal with general conditions of detention under Article 8. Wainwright (strip search) and Young (urine samples) are both within the traditional scope of Article 8 in dealing with matters of bodily integrity. Carson, Martin and Mulligan all deal with chamber pots or buckets not a chemical toilet. The choice here is between one type of toilet or another, a situation which does not raise a question of sufficient severity to engage Article 8 at all.

[239] In any event, the right to respect family life is an area where the contracting states enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. The lack of in cell sanitation does not of itself establish a lack of respect for the petitioners' rights under Article 8. There is in this case - unlike Carson - no evidence of a hostile or uncaring attitude on the part of prison staff or the authorities. Further the sanitary arrangements at Peterhead have been improved upon and kept under review to mitigate the effects on prisoners and in a way which has respected as far as possible their rights, whilst at the same time taking into account their safety.

[240] Counsel referred to R. (on the application of McDonald) v Kensington and Chelsea LBC [2010] EWCA Civ 1109 to note that when addressing the contention that access at all times to a lavatory is a basic human right that issues of sanitary care arose not only in the context of prisons but in a wide variety of contexts and the proposition might have far reaching consequences. Moreover, the case reminds us that prisoners engaged in sanitation work parties are not unique. Nurses and the like undertake such duties and accept it as part of their job. Mr Greens and Mr Wilson both volunteered for the job. Finally, the respondents have acted in a genuine attempt to improve the conditions out of a genuine attempt to meet the prisoners concerns and to balance that with their safety and limited resources.

[241] As to the case of Wood raised by the petitioners in their response (below) counsel submitted that this case did not assist since it related to very specific subject matter - the taking by police of photographs of a demonstrator - which required consideration of a well recognised sub-set of cases in convention jurisprudence and the three safeguards, notably the reasonable expectation of privacy, are plainly germane to that specific context. Moreover, the words of Lord Bingham were doubted by the ECtHR in the subsequent case of Gillan & Quintan v UK (2010) 50 EHRR 45.

Petitioners' Response on article 8
[242] Counsel for the petitioners did not accept that case could be categorised as a positive claim for 'one form of toilet rather than another'. A toilet is "a fixed lavatory with a ceramic bowl, a seat and a lid, plumbed into a sewage system, and with a flushing mechanism". A porta potti is a temporary receptacle for human waste, for use in circumstances where the user is unable to gain access to a toilet. These cases are not to be equated to those in which the claimant asks for the state to confer on him a welfare benefit : it is a claim based on the fact that they had been denied access to such on a systemic basis. When and how a person urinates, defecates and maintains hygiene fall within the broad scope of 'private life' under Article 8. The systemic denial of proper access to a toilet, and its consequences, constituted an interference with the petitioners' private lives.

[243] It is clear from the authorities that Article 8 may be engaged in respect of prison conditions which do not reach a level of severity to engage Article 3: therefore the ECtHR recognises, in principle, that there is a lower threshold for interference with an Article 8 right than for breach of Article 3 and that it may be appropriate to look at the same facts on which the complaint is based, in prison cases, under both Articles. Both Anufrijeva and Shelley can be distinguished as dealing with areas in which the court has been very reluctant to read Article 8 as imposing obligations on the state. Neither case excluded the possibility that Article 8 could apply when Article 3 did not. The threshold for Article 8 is no more capable of precise calculation than that for Article 3, but if a single strip search or a requirement to submit to a urine test or drugs search all involve interference with Article 8 rights then it is clear that prolonged, systemic, daily denial of access to a toilet and its consequences, must also do so.

[244] Callison accords with the approach proposed by the petitioners. The same central issues - denial of proper access to a toilet and slopping out - are at the heart of both Napier and the present cases. There is a procedural aspect of Article 8 but it is not relevant to the petitioners' cases under Article 8 where the complaints relate to matters of substance. It can be seen from the analysis of Article 8 in Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 that the scope of article 8 is very broad:

"Looking only at the words of the Article, one might have supposed that the essence of the right was the protection of close personal relationships. While that remains a core instance, and perhaps the paradigm case of the right, the jurisprudence has accepted many other facets; so many that any attempt to encapsulate the right's scope in a single idea can only be undertaken at a level of considerable abstraction."

[245] What is protected is the personal autonomy and human dignity of an individual, from which one can see that the scope of Article 8 is very broad. Any interference must be justified, and the value of this right is too great not to be preserved even in "little cases". But there are safeguards against reading it so widely as to make it unreal and unreasonable: (a) that the threshold for interference requires a "certain level of seriousness"; (b) that the touchstone for engagement on the facts is a "reasonable expectation of privacy" (as broadly defined); and (c) the scope of justification. Judged against the safeguards, there has clearly been an interference with the present petitioners' Article 8 rights. Article 8(1) requires to be generously applied, but that should not be cause for alarm because in very many cases proper application of Article 8(2) will readily result in there being no breach of Article 8 overall. Here the respondents have offered no justification, rather they ask the Court to take a restrictive approach to scope and interference.

Petitioners - remedies

[246] If the conditions of imprisonment were incompatible with Articles 3 or 8, the acts of the respondents in detaining the petitioners in such conditions were ultra vires of section 57(2) of the Scotland Act 1998, for which the same remedies are available as for any other ultra vires act, e.g. declarator, reduction, interdict.
Somerville v Scottish Ministers 2008 SC (HL) 45. A declarator of a violation of Convention rights is central to the need to grant an effective remedy. A remedial decision favourable to the petitioners is not in principle sufficient to deprive him of his status as a victim under Article 34 ECHR unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention: Scordino v Italy (No. 1) (2007) 45 EHRR 7. The primary remedy sought by the present petitioners is a judicial finding that there have been violations of their rights under Articles 3 and/or 8. The Court should sustain the relevant pleas in law and grant the declarators sought.

[247] Provision is made in section 100 of the Scotland Act for damages to be awarded in respect of ultra vires acts of the Scottish Ministers, giving the court the power to grant an effective remedy: Somerville. In considering whether to award damages the Court must take account of (a) any other relief or remedy which it grants; and (b) the consequence of its decision in respect of the Convention incompatible acts. Unless satisfied, having regard to these matters, that an award of damages is necessary in order to afford just satisfaction, no award may be made. Assuming that it is necessary to award damages to afford just satisfaction, domestic courts should aim to be neither more nor less generous than the ECtHR might be were it considering the same case. It is not open to the domestic court to refuse to award damages, where Strasbourg could be expected to, on "public interest" or "last resort" grounds.

[248] Awards of damages in "pure" Article 3 prison conditions cases since Napier would appear to range from 2,000-9,000. The severity and duration of the conditions are relevant. Awards in more recent cases suggest an upward trend in the level of damages awarded.

[249] As regards Article 8, the petitioners are unaware of any other cases in which damages have been awarded due to unjustified systemic denial to a prisoner of proper access to proper sanitation. In Re Justin Martin Girvan J declined to award damages to the applicant notwithstanding the violation of Article 8 but his reasoning was flawed. In the circumstances here an award of damages is necessary, in addition to a finding of violation of Article 8, to afford just satisfaction.

[250] The damages should be in the region of 3000-4000 (or sterling equivalent) per petitioner, plus interest, depending on the length of time for which the individual petitioner was subjected to Article 3 incompatible treatment, and the level of subjective impact on him.

[251] For a breach of Article 8 damages should be in the region of 1000-2000 per petitioner, plus interest, again having regard to individual circumstances.

[252] Interdict is also craved as regards Greens and Wilson but consideration of whether interdict is necessary, and if so its precise terms, should be held over for consideration in the light of such declarators as the Court may grant.

Respondents - Remedies
[253] Counsel submitted that the following principles can be distilled from the authorities:

(1) Compensation is awarded not as an entitlement but only if it is "necessary" to "afford just satisfaction", making an equitable assessment of whether compensation is appropriate in all the circumstances;

(2) the applicant should as far as possible be placed in the position he would have been had his affairs been administered in a Convention compliant manner;

(3) monetary compensation will only be awarded if the loss and damage claimed was actually caused by the violation found;

(4) interest may be awarded where necessary to avoid unfair diminution in the value of an award, but exemplary damages will not be awarded;

(5) damages will be modest by domestic standards since a finding of a breach will usually be an important part of the remedy and damages are not generally necessary in order to encourage compliance;

(6) what may be "just" includes not only what is appropriate for the victim but also for the interests of the wider public.

[254] Looking to Strasbourg precedents, one can identify a number of cases in which an award of 3,000 has been made although the circumstances were more severe than the present. A sum of 3,000 would be justified unless there is some particular aggravating factor to justify a higher award, and would be reasonable in the present case in the event of breach being established.

[255] As to the interdicts which are sought, counsel adhered to his arguments in relation to the relevancy and specification of the orders sought. It is not clear from the terms of the interdict what is said to be the basic right which is infringed. Two of the petitioners seek interdict to prevent the respondents from transferring them:

"to conditions of detention in which he is not free at any time to use a purpose-built, fixed and flushing-action toilet with a related supply of running water and wash basin, failing which they seek declarator that the respondents should secure their confinement in conditions where they are "free at any time to use a purpose-built, fixed and flushing-action toilet with a related supply of running water and wash basin".

[256] The respondents have called upon the petitioners to specify the measures which they maintain would render the conditions of detention convention compliant, whether only by the presence of a fixed toilet in the cell or otherwise. It is for the petitioners to formulate the precise terms of the order which they seek so that it is made clear to the respondents what they can and cannot do. Murdoch v Murdoch 1973 SLT(N) 13. These craves are lacking in specification and are irrelevant. Counsel for the petitioners has said that it is necessary for the respondents, not to be in continued breach, to install in cell sanitation or to provide access on request to external facilities. The facilities which are required include the provision of "a fixed lavatory with a ceramic bowl, a seat and a lid, plumbed into a sewage system, and with a flushing mechanism" by which one can assume that an "Asian" style toilet, encountered in many parts of western Europe would not suffice. This brings into sharp focus the point raised by Lord Hoffman in R(Wellington) v SSHD that we must not confuse what we might regard as the domestic or national norm with the threshold for compliance with the convention. Peterhead is not, as the petitioner sought to suggest, "almost alone in the Council of Europe in systematically denying access to a toilet". The court has heard evidence of other continental countries without in cell sanitation as well as the situation in England, Northern Ireland and the Irish Republic. The proposition that denial of continuous access to a lavatory (let alone the facilities defined by the petitioners as necessary) could amount to an infringement of convention rights in many circumstances going way beyond the bounds of the present case.


Article 3
[257] To constitute a breach of Article 3 treatment must attain a minimum level of severity, involving suffering or humiliation going beyond that which inevitably follows a sentence of imprisonment. Treatment has been held to be degrading where it aroused in the victim feelings of fear, anguish and inferiority beyond that which might be expected to follow imprisonment. It has been described as inhuman where it was premeditated, applied for hours at a stretch and caused either bodily injury or intense physical or mental suffering. The decisions of the ECtHR are of necessity fairly fact-specific and given the nature of the language used, it is not easy to generalise about conditions which might constitute a breach of Article 3. One must be guided not only by what the court says but by a consideration of the factual situations where the court has indeed found there to be a breach of Article 3. For example, although damage to physical or mental health is not a prerequisite, a look at the cases in which this observation has been made nevertheless makes it clear that treatment of some severity requires to be established. Examples of cases where the court has explained that damage to physical or mental health are by no means essential include Mkhitaryan, Malenchkov, Peers, Cenbauer, Fedotov and Dougoz. In Mkhitaryan the applicant was detained in a cell 7.5m with 9 others, no beds and no bed linen. He and three others were then transferred to a cell of the same size, again with no bed linen but with 2 beds which they had to share. The water was undrinkable and poor quality food was provided only once a day. He was allowed no contact with his family and no reading material. Malechkov was held for 24 hours a day in a cell with no natural light and a bucket for relieving himself. He was allowed out twice a day for five minutes to use sanitary facilities and empty the bucket. Dougoz was confined in an overcrowded and dirty cell with insufficient sanitary and sleeping facilities, scarce hot water, no fresh air or natural daylight and no yard for exercise. It was even impossible to read because the cell was so overcrowded. Conditions of similar severity can be found also in the cases of Peers, Cenbauer and Fedotov. One is not of course looking for exact parallels but these cases, and others, offer some guidance of the level at which the threshold for breach of Article 3 may be established. They are a potent reminder that one is looking to an absolute and international standard which applies across the countries which are signatory to the treaty and not to a standard which is one we might consider desirable for Scotland or even the UK as a whole. One might agree entirely with the comments of Professor Markus in his conclusion that the slopping out process and limited hand washing facilities are inherently undesirable and should not be used in present-day prison regimes, but that does not mean that these factors constitute a breach of Article 3, especially since it is quite clear that it is the entirety of the conditions of detention which must be examined to see whether the threshold is met, not one aspect of them. We are concerned with minimum standards not norms.

[258] With the exception of cells of a size allowing less than about 3m per person, the ECtHR has not isolated one aspect of imprisonment as being sufficiently severe to meet the threshold. In this regard I do not accept the submissions of the petitioners that the cases of Malenchkov and Radkov establish that single cell slopping out has per se been categorised as sufficient to constitute a breach of Article 3. It is clear that the ECtHR has repeatedly found a violation of Article 3 in situations where a prisoner has been required to relieve himself into a bucket in the presence of others, and having to be present when others did the same. The court in Malechkov concluded that it was unwarrantable to require a person even in a single cell to relieve himself into a bucket, except in specific situations where allowing visits to the sanitary facilities would pose concrete and serious risks. It did not find that this was a breach of Article 3 per se, the breach consisting in the totality of the conditions, noted above, in which the applicant had been kept (paras 140,146). Part of the complaint in Radkov was based on use of a bucket in a shared cell but he had also been in a single cell with a bucket and was allowed access to a toilet only three times a day for ten minutes. It is true, as counsel for the respondent said, that the breach was held to consist in the overall conditions in which he was held, which included shared and non shared accommodation but in my view it is clear from the consideration of what was said in Malechkov that the court seems to be expressing the view that to require the use of a bucket even in a single cell constitutes a breach of Article 3. Radkov is the only case of the many which were cited which reaches such a conclusion on the basis of the use of a bucket alone and care must therefore be taken in considering and applying that decision. The reliance on the passage from Malenchkov is made without regard to the wider considerations which applied in that case or to the fact that there the breach was not found to consist in the requirement to use a bucket but in the "cumulative effects of the unjustifiably stringent regime to which the applicant had been subjected and the material conditions in which he had been kept". I would therefore be reluctant to conclude that this case forms part of the clear and consistent jurisprudence of the court. In any event, even taking the decision at its highest, it does not follow that any regime which requires slopping out to any degree is in itself a breach of Article 3. If the difference between requiring to use a chamber pot and a chemical toilet is "day and night" the difference between having to use a bucket and a chemical toilet is at least as great. I do not accept the petitioners' submission that to require a prisoner to use any receptacle other than a screened and flushing toilet constitutes a breach of Article 3.

[259] I turn then to the contention that the conditions of detention as a whole constitute a breach of Article 3. In doing so I bear in mind that it is to the totality of the conditions which I must have regard. The cell conditions have to be balanced by an overall assessment of the day to day routine and educational and leisure facilities. The sanitary arrangements are one aspect of the conditions in which the petitioners were held: that is quite clear from the cases which indicate that aspects of the regime which are less than satisfactory may be compensated for by other positive aspects of the regime. In particular, privacy, out of cell time, opportunities for work and leisure, and good staff/prisoner relations will all be important. The importance of looking at the regime as a whole is emphasised in case after case. In the vast majority of cases to which reference was made, there were a number of serious deficiencies. Napier is a case in point. Not only did it involve the use of a chamber pot, the decision was based on the "triple vices of overcrowding, slopping out and an impoverished regime".

[260] The complaints of the petitioners in the present cases were very strongly based on the slopping out process. They were asked about cell size, ventilation and lighting but beyond suggesting these were poor, they were not really the focus of complaints. Stanger did say that he thought only one cell was sufficiently large for his purposes but then his personal belongings included a typewriter, a piano keyboard, a TV, a DVD, a stereo and painting equipment. The others referred to there not being much room to move around in. The cells are no doubt small by modern standards but they all meet the Home Office certification standard in gross area. The 1991 CPT report which suggests that the figure of 7m is a desirable standard and not a minimum prefaces this by saying that is it difficult to set a figure but that they consider there should be some rough guideline in this area. I accept the evidence of Professor McManus that the CPT did not recognise a standard of 9m. He has only been the UK member of the CPT since 2009 but was an expert adviser to the CPT from 1992. Half the cells in question fell below the figure of 7m but that figure is a guideline recommendation not a minimum. In any event, the issue is not whether, in this or any other respect design standards or recommendations are met, but what the overall nature of the conditions are. Ventilation is obviously poor, the main complaint being that this enabled any smell within the cell to linger. The lighting in the cells is obviously less than ideal, especially at the bedhead and any useful daylight only occurs in the summer months and in any event has to be supplemented by natural light. All said that it was not easy to read in bed until they bought a lamp. However, on all these matters there were few specific complaints. Even Stanger, for example, made no complaint that at any stage he did not have enough light to paint by, one of his main occupations. The central nub of the complaints lay with the sanitation arrangements and the consequences of these.

[261] The changes which were instituted in 2007 clearly had a significant effect on the use of and slopping out of the chemical toilets. I do think, on the evidence not only of the prisoners, but of other witnesses and reports, that prior to 2007 it is likely that a nasty smell permeated the hall when the porta potties were being emptied. I think that at these times the smell was considerable, a mixture of chemical and faecal, but probably strongly chemical. It would be at these times that the fogger was used. If there had been no offensive smell, lingering for some time, they would not have needed to have a fogger at all, nor would there be complaints that the fogger did not really work. Equally they would not have needed to replace the doors in the ablutions area nor would they have to have opened the hall doors. I accept that spillages to some degree, accidental or otherwise, would not be uncommon prior to 2007. I do not think that the slopping out process was as uncontrolled as the petitioners would have me believe. The suggestion from Stanger, and others, that prison officers would hide away in the office or at the computer does not accord with his evidence that during the emptying process prison officers would be hurrying people along. No doubt not all officers on duty would be present, and I can accept that those who were not required to supervise might "make themselves scarce" but I do not believe that the prison officers simply allowed a free-for all during this process. As Mr Wemyss put, it they observe the process to make sure there is no "tomfoolery". I accept that prisoners would sometimes have to step into some slopped out spillage or would be splashed in the process of emptying the porta potti. I reject entirely Greens' description of walking over faeces and urine during the pre 2007 slopping out process. I accept that there could be splashes from the units if prisoners did not take sufficient care, and that sometimes this was engineered deliberately as mentioned by one witness, but I do not accept that matters were ever as bad as described by Greens. Stanger described contents sometimes spurting over the sluice and causing splashes. He said the floor "wouldn't be bad but he would be able to see urine there". I accept that, which accords with the evidence of Professor McManus, and I accept that the situation would be likely to be worse for those at the end of the queue. I accepted the evidence of Mr Hebden that the degree of expertise, knowledge and willingness to conform varied and the process was less well controlled and took longer. Spillages were however largely confined to the ablutions area unless someone dropped the unit.

[262] I think that the petitioners generally exaggerated the extent of the smell, both before and after 2007, and within and outside the cell, and that the prison officers occasionally underestimated it for the period before 2007. With the exception of the petitioner Greens I did not feel that this was in general deliberate, rather it was a reflection of the different perspectives from which they saw the issue. I did not accept that the smell was nearly as bad as the extremely graphic description given by Greens. In my view he greatly exaggerated the smell both in the hall and in the cell and both before and after 2007. I reject his assertion that using the correct amount of chemical made no difference in this respect and accepted the body of evidence to the contrary. I thought he made a deliberate attempt in cross examination to blame the headaches he had suffered on the conditions in the prison whereas in reality he had all along thought they were the result of withdrawal from heavy cannabis use. This had been his explanation in examination in chief, even when his counsel put to him a blatantly leading question about the possibility of prison conditions having been the cause. These factors caused me to have doubts about his general credibility. I reject his evidence about others making comments and laughing at him. This may of course have been his perception so some degree but I do not think that it actually happened. In fairness he did say this might just have been his "paranoia". Wemyss was described by the petitioners' counsel as "defensive": I can understand why he said this but in fact I think the witness was simply being very cautious and taking great care to make sure he understood what he was being asked before responding. Given the misunderstanding which arose from his conversation with Professor Canter this is not really surprising. It was argued for the petitioners that the prison officers who gave evidence were not, because of the management roles they had assumed, in as good a position to speak to the conditions as the prisoners. I do not accept that contention. The prison officers had considerable experience of life in Peterhead and in my opinion there was no reason to think that they were not in a good position to describe the process and its effects. I did not accept that the evidence of Mr Milne on the matter of smell was inconsistent. He was clearly reliant on what others told him, having little sense of smell himself.

[263] Given the more or less undisputed evidence that ventilation was poor, I think the possibility was there for unpleasant smells to exist or linger within a cell, especially during and after use and in particular before 2007 when the issue of the bags was cleared up. I have some difficulty in accepting that the smell was as pervasive as the evidence of the prisoners suggested. It is clear that prisoners in some halls had at one point little choice but to eat in their cells. It is also clear that after the provision of facilities to enable them to do so, most prisoners did not eat in the hall. I conclude that there were many reasons for this: being accustomed to eating in their cells might be a factor, but I cannot hold that it was the principal one. If the smell was so great as they suggest, or the fact of eating in the same room as the chemical toilet so disgusting to them, they would certainly have availed themselves of the facilities to eat outside when these became available. The opportunity to eat watching the TV or listening to music or the fact that for many eating at table in company was not the norm would all be important factors in this.
Wilson referred to not knowing people, to cliques, and not wanting to associate with older prisoners as well as concerns about what they were doing under the tables - "You don't want to sit down with people you don't know about". At one point in chief Greens said that the smell when using it could be horrible but that it went after 5-10 minutes. Wilson said it was worse when opened but you could still smell it when it was shut. I accept that there would be a smell when the unit was opened for use, and if the slider between the two parts of the unit was not closed. This accords with the 2007/8 HMCIPS report and evidence that with the lid down and the stopper over the smell would fade. I conclude that both before and after 2007 there would be a transient smell when the unit was operated but that this would not linger unduly. I think this was even less after 2007 when the correct dilution of chemicals was used. Wilson said that there was no smell in the hall when all the chemical toilets were placed outside for emptying, which is not what one would expect if there were truly a permanent bad smell from the units.

[264] I think that the system after 2007 was generally a considerable improvement. The improvement came from two things in the main: the proper use of the chemicals and the introduction of sanitation work parties. I do not doubt that there remained a strong smell from time to time during emptying but I think this was alleviated by the use of the chemicals which increased the chemical component of any smell and meant that it did not linger in the air for so long. The change in doors would not make much difference during the actual emptying but would make a difference to the subsequent containment of the smell and the efficiency of the fans in the ablutions area in dispersing any lingering odour. There was ample evidence that the system of work parties meant that the process was done more efficiently, with much less spillage and with consequently greater containment of the smell. As with any system relying on individuals, some work parties might be more efficient than others and as Mr Hebden said it will sometimes be necessary to remind work parties of certain points on the evidence I accept that the present system is generally satisfactory. I think that there must still be a very unpleasant smell during the process of emptying out, but not that it lingers in the hall to any substantial extent. Before the introduction of the work parties there was one fogger for the whole prison. With the introduction of the work parties one was bought for each hall. However the new regime proved to be an improvement to the extent that their use was discontinued by summer 2008 as no longer required as the FIG report noted.

[265] As to the issue of the flasks I believe that they were meant for use for hand washing. Milne said this and so did others and some of the prisoners. I also believe that in some cases they were used for hot drinks but I do not think this is why they were furnished. Prior to the introduction of kettles prisoners were given 2 flasks - one for drinks and pump action one for hand washing.
Wilson's explanation that he thought the flask was for his kettle is a bit odd - why would he need to keep warm water for that? His explanation that once you had touched it, it was contaminated, is I think a more likely explanation for his using it for that reason rather than for hand washing. However, that too is a bit odd. I can see it applied to the water in the bowl but to apply it to the pump is a bit strange - exactly the same could be said about a tap; more so as other people would touch the tap. Stanger said that re hand washing he would put the water into the chemical toilet after use, if it were near emptying time, but otherwise it would remain there until the next day, which suggests that each morning there would have been the opportunity to empty the basin at the ablutions area. Certainly there was no evidence to suggest otherwise. Why there was this misunderstanding about the flask is not entirely clear. I do accept that the induction process did not work as effectively as it was meant to do, although I have been given to understand that this has been improved and a more thorough demonstration is now given. There may be several reasons why the process was less efficient than it should be. One is the point made by Professor Canter that in a hierarchical organisation rules provided by senior people do not necessarily find their way down to lower levels. Prisoners will also be taking in a lot of information about prison life during induction so there may be issues also with the extent to which the information will be taken in by the prisoner. The matter would not be helped by the fact that until recently only the induction officers were given any training in the use of the chemical toilet so errors in practice in the halls would not be picked up. Now all officers receive such training.

[266] Both experts agreed that the method of handwashing within the cell was one with reduced effectiveness, the differences between them being one of degree. Professor Leanord said that any risk would still be reduced as the organisms (apart from the one-hit novovirus ones in respect of which hand washing offers in any event little protection) were transient, loosely adherent and easily removed. Professor Coia did not suggest that this description of the organisms was incorrect. Both recognised that any risk was further reduced by the opportunities to wash hands before meals and during other periods. The risk of infection to third parties from use of the chemical toilet by an infected prisoner was basically a theoretical one, and was a risk which existed in the prison generally if such a person used a toilet in the ablutions area. In fact the risk there was probably greater since there might be a higher likelihood of another prisoner coming into contact with an infected surface.

[267] I am quite satisfied that the prison officers do indeed operate a system whereby prisoners are allowed to block the spyhole when using the chemical toilet. I accept that there has been consistency about this for several years. I accepted the evidence generally that prison officers do make efforts to respect the privacy of prisoners in respect of use of the chemical toilet. No doubt a prison officer occasionally may make a fuss about it, or enter unannounced but the evidence suggests that this would be rare and indeed that it might be a new officer, who would then adopt the general practice. I am sure that if prisoners do not unblock it within a reasonable time they may be threatened with being on report, but it will be in those circumstances in my view that the threat will be made, not against the practice simply of blocking the spyhole to use the chemical toilet. For example, Greens said staff would unblock the spyhole during security checks and he would have to block it again, which suggests that he at least was not always punctilious in removing it when he should. I also accept that there is an open door policy but of course this only works to the extent that there are sufficient staff and I accept that there will be many occasions when access could not be given. I accepted the evidence of Mr Milne that staffing levels have enabled this to be offered more consistently of late.

[268] I did not believe Wilson that there was a serious problem with waste entering his cell on the ground floor of A Hall from the practice of "bombing". I accept that there might have been the occasional drizzle as he put it in cross but I do not accept the picture which it seemed to me he was seeking to paint in evidence in chief and I did not believe him when he said he had reported the it to named prison officers who were not on either list of witnesses. He made no formal complaint about it and, since he had complained about another matter and knew how to do it, I do not believe he would have refrained from doing so had there really been a serious problem. His explanation that he "was not a great one for forms" did not in the circumstances persuade me. As to smells, there is no doubt that the accumulation of waste material and rubbish on the flat roof at A Hall caused a smell, especially in the summer. Professor Corcoran said that he thought the likelihood of odours entering a cell in this way were remote, but I do accept that it might happen from time to time y in hot weather, especially when packages had landed very near the cell in question and had been there for a few days. Although Wilson was the only one to occupy a cell adjacent to the flat roof, the other prisoners also remarked on occasions when they had to shut a window to prevent splashes entering the window from the practice of "bombing" and I see no reason to differentiate amongst them. I do not think that the practice of "bombing" caused significant issues inside the cells. It should be noted that this practice occurs in all Scottish prisons including those with internal sanitation so it is not a problem unique to slopping out.

[269] The option of providing night time access on request was considered and rejected for operational reasons, involving consideration of the number of staff which would be required, concerns over staff safety and because the efficiency of any such system depends on the numbers wanting to access it at any time. The prison officers who proposed the system might have felt that they could provide it but the managerial reasons for rejecting it were appropriate. I accepted the evidence of Mr Swan on this matter that the plan was rejected because it would have been very expensive and carried operational and security risks.

[270] Mr Pretswell spoke to the fact that from the mid 90s the strategy followed in Scotland to improve standards across the board and to end slopping out was to build or modernise complete prisons and not simply add new accommodation blocks to old facilities. Experience doing the latter had suggested it was not the best way to proceed. Considerable investment was made in building new prisons - Kilmarnock, Low Moss and Addiewell - and in completely rebuilding several prisons where slopping out was practiced, for example Perth, Edinburgh, Glenochil and Greenock. This was not done at Peterhead but this was not because sex offenders were targeted for worse treatment but because the original intention was that the prison should close. That changed following consultation and Mr Pretswell said that ministers were at the time encouraging work to be done with sex offenders to reduce re-offending and Peterhead had built up an international reputation for excellence in that regard. Ministers therefore decided that the prison should remain in operation. It seems clear that Peterhead did have the reputation ascribed to it, whether wholly justified or not, and that reputation played a major part in the campaign to keep it open and the consideration of its future. Whilst experts might argue about whether it was in fact necessary for all such work to be concentrated in one "centre of excellence" or not, the basis for the decision was a rational one and I cannot conclude that it was taken other than in good faith. As to the 13million underspend, I accepted the evidence of Mr Pretswell that this had not been earmarked either for Peterhead or Barlinnie and that the sum in question came back into the budget in time to fund the acceleration of the capital programme and had no impact on the programme to address slopping out. Professor Coyle's evidence that having moved out ordinary long term prisoners the SPS chose to locate sex offenders in the only prison which could not easily be refurbished (with the implication that they were somehow targeted for such treatment) jarred somewhat with his explanation that Peterhead developed by default into a prison for sex offenders.

[271] It is clear that there are many positive aspects of the regime in Peterhead. It was described as a fairly relaxed prison and the relations between prisoners and staff were repeatedly described as good and positive. Professor Coyle noted that the 1994 CPT report had described the regime as encompassing a varied and potentially challenging range of activities and this remained the case today, looking at the 2010 report from HMCIPS. Professor Cooke was "taken by the apparent quality of the relationships between staff and prisoners" and said that the way in which they related seemed positive and non-threatening. There was considerable out of cell time. It will be apparent from the list of activities and courses undertaken by the accused that they had many opportunities for work, education and leisure. These are described elsewhere in this opinion. The courses in which they participated included literacy, alcohol and drug awareness, anger management, relationships, book-keeping, art, maths, English, and computing. They never had difficulty in getting onto a work party or enrolling for courses. They all obtained qualifications of some kind whilst in prison. They all became BICS qualified. Greens obtained city and guilds in bricklaying and joinery and hopes to go to college on release to finish his joinery training. He qualified as a Samaritan. They all participated in exercise and Stanger managed to do three 10k runs. Greens had a TV, hi fi and play station in his cell; Wilson a TV and other possessions; and Stanger had the long list noted elsewhere in this opinion. Apart from outdoor work which was the subject to cancellation for various reasons, other work was seldom cancelled and kitchen work parties were never cancelled. The estimate of one of the prisoners was that work was available for him 75% of the time. They are newspapers and reading material and can purchase items from the prison shop. They have restricted access to a telephone and opportunities for recreation. In my view counsel for the respondents was correct to say that there was evidence overall of a humane regime. The factors noted in this paragraph are very important positive factors which require to be taken into account in assessing the overall nature of the conditions of detention. Professor Canter explained that the opportunity to personalise a space was symbolically important. He also said that impact of a place, such as a cell, was in part a function of the other places to which a person has access and the activities allowed there. He said that the amount of time spent out of the cell is important and that if passmen are given training and well managed they might take some pride in their work which could enhance their feelings of self worth. Prisoners who spend much of their time out of the cell attach much less significance to the cell itself. The relationship between prisoners and staff is very important. Professor Cooke said that this was very important to prisoners as it is often within these interpersonal relations that stresses can occur. I understood Professor Canter to agree with that, in his comments on the modifying nature of the regime and how it is managed. Professor Cooke indicated that human relationships are more critical then the physical environment.

[272] To these very positive aspects of the regime in Peterhead must be added one other: privacy. Professor Canter said that the potential for privacy in the present case was a lot greater than it had been in Napier and the prisoners benefited from more out of cell time and a structured regime of activities, all of which are important psychological factors. Nor was the prison overcrowded. In my view the approach of the petitioners in the present case minimises the importance of privacy in the overall assessment of conditions. None of the petitioners had to share a cell. It is clear that the fact that an individual is housed in a single cell is a very important feature of the cases which have been considered by the ECtHR. Professor Canter said that many experts regard privacy as one of the central issues about how people regard their surroundings. The fundamental importance of privacy in this context can be seen from the various quotes used by Professor Markus in the Napier case but unfortunately omitted from his reports in the present case. Of course, this must be looked at in the context of a prison sentence when a certain loss of privacy must be expected. However, it is clear that the prisoners could block their spyholes to maintain privacy when using the chemical toilet and also that staff were in general careful about entering cells unannounced for the same reason. I accepted the evidence of the prison officers to this effect. The acceptance of covering spyholes was described by Professor Canter as a sensible adjustment respecting a prisoner's needs whilst recognising the operational need to have the spyhole for security reasons.

[273] Professor Markus's concept of a "group of one" was one which I found difficult to follow. The meaning which he attached to the word "crowding" does not seem to be reflected in the material to which he referred in his reports. It was clearly not the meaning which Professor Canter applied to the word. Moreover, the quotations which he gave from the various references were somewhat selective and did not always, in my view, give the full context which was necessary for a proper understanding of the significance of the quotation. For example, although he refers to the BRE report in this context, the authors of that report go on to say that crowding depends on a wide range of factors, some of which are more fundamental than others. They record that:

"Crowding is closely related to privacy, which in turn is important in the development of "self-identity", a sense of integrity, independence and self esteem."

When they refer to the effects of stress due to crowding it is in general under reference to situations of high population density and, when referring to prisons, is specifically linked to high population density, a factor which does not apply in the present cases. That part of the BRE report relating to stress due to crowding is all related to privacy and the strain of being in the continual presence of others. Much of the reports which Professor Markus prepared in the present cases are a direct replication of his report in Napier with a few adjustments and some of those adjustments are of real concern to me. In the Napier report he continues the BRE quote to include the following: "Privacy and personal space appear to be more important for health than space as such. ... Adverse effects of crowding can be explained by the need for personal space and for privacy."

He then states that the report is:

"an excellent summary of the effects of crowding, of the importance of lack of control, forced space sharing, the role of intimate activities like excretion, the resulting stress, physical and physiological illness and possible behavioural effects. ... The ... Report strongly suggests that all the issues in my report below are of greater significance than the actual dimensions of the cell."

It seems a little extraordinary in the circumstances that this part of the report was not included in the report which he prepared in the present case. It is also worth noting, having regard to his revised definition of crowding in the present case that in a whole section in the Napier report dealing with the issue of privacy, the section started with the words "One of the most damaging effects of crowding is the lack of privacy" and quoted a report on single cell prisoners as showing that the best single feature of it was privacy:

"They appreciated the ability to go to their rooms to be alone and concentrate or to seek refuge when tense and upset, or threatened. Interviewees suggested that this was a critical factor in coping with the stress of incarceration and felt it helped reduce violence on the unit".

Since he did not refrain from quoting US sources in the present report it is surprising that this material was omitted. With the exception of updating the relevant design standards, the different cell dimensions, and the introduction of the "group of one" it is difficult to identify any differences in substance between the Napier report and the present ones save for the omissions mentioned yet the circumstances were very different indeed. It is difficult to identify different or new material which might justify a different conclusion being reached by him in the present cases. The fact that he also used material, which he agreed in evidence with Professor Cooke "does not look as if of any relevance to prison cell situations" is of concern. Other than this concession he continued to maintain that all the material he used was relevant because "I have just removed the elements which are not relevant".

[274] I did not feel that the materials justified this "group of one" concept. It seems to me that crowding is essentially to be understood in the way described by Professor Canter as implying contact with others which, as he recorded, is not an issue in this case, with the possible exception of during the queue for slopping out pre 2007. Indeed, that is the way the phrase "crowding capacity" is used by Professor Markus in the tables he created to show useable net space. To a large extent he has cited materials which referred to people in groups and the privacy issues and psychological effects which can arise and interpolated these to apply to a situation where a person is not in a group. He has used literature based on doubled-up or multi occupancy and tried to apply it to single occupancy cells. The 1974 document "An Introduction to Environmental Psychology" which he quotes stated that:

"the individual cell need not be inhumane; what matters more is time spent in it and the opportunities for exercise, recreation, study and work made available in the total setting".

These, of course, are amongst the factors repeatedly considered important by the CPT and the ECtHR. They are factors about which there was a considerable amount of positive evidence in the present cases as noted above.

[275] The issue of the effect which conditions might have on individual prisoners is a difficult one. One factor which bears on this is that the prisoners' account of the conditions which they said led to their feeling downgraded, embarrassed and anxious has not been entirely accepted by me. Moreover, I do not think that Professor Canter's approach is sufficient. Essentially he says there are present within this prison regime conditions which might be capable of lowering a person's self esteem and causing stress, the petitioners complain of symptoms of lowered self esteem which they claim to be a response to the conditions, thus cause and effect is sufficiently established. In the first place, even if one accepts that there are within the prison regime aspects which might be capable of having an adverse effect on self esteem, they are not alone. There are many positive aspects of the regime which, as Professor Canter acknowledged, might have a positive effect on a person's self esteem. Unless one puts all these factors into the balance it is impossible to draw any conclusions. It would be quite wrong to draw any conclusion from one aspect of the regime alone. Furthermore, one cannot simply accept a person's own lay assessment of mood and their attribution of the cause or causes of it at face value. The evidence of Professor Cooke explained this most powerfully in his reference to "effort after meaning" and the difficulties which are inherent in relying on a person's subjective evaluation of their position. In addition, it is necessary to take into account and assess the other possible causes of any lowered self esteem or stress which is reported. Not only might there be reasons or causes which pre-date imprisonment, as Professor Cooke explained it is generally recognised that the process of imprisonment is an inherently stressful event for a variety of reasons, including loss of liberty, loss of autonomy, deprivation of goods and services and fear for personal security. This is even before one takes into account factors which might apply to individual prisoners, such as the belief that he has been wrongly convicted, concerns about his family, or the effect of bereavement. Being in a prison such as Peterhead, known to house sex offenders, would not increase a person's self esteem and would be extremely challenging for a prisoner who considered himself innocent. To address an individual's self esteem one would need to look at all relevant factors. Not only might there be many separate reasons for any stress or low self esteem, looking at all the factors which might bear on an individual prisoner one can readily see that something might take on a greater significance in a prisoner's mind than it might actually merit. I do not consider that it has been established that the conditions in Peterhead lowered the self esteem of the prisoners or caused them stress or humiliation.

[276] The difference between a system which relies on the use of buckets or chamber pots and one which relies on a chemical toilet should not be underestimated. Clearly both systems rely on "slopping out" but even that process is of a different order when comparing that exercise with a sealed chemical toilet or with a bucket or chamber pot. I have no doubt that as Professor Coyle put it "Everyone concerned with single cell slopping out of chamber pots finds it disgusting and the majority find it degrading." He said that the chemical toilets were better in degree but that the degrading nature of the task remains. It seems to me that he considerably underestimated the nature of the change which came about with the introduction of chemical toilets and again with the introduction of work parties. This may be because he has never experienced the process of slopping out using chemical toilets either before or after 2007. He was last in Peterhead in 1990. His comments on the actual process must therefore be viewed with some care. It is true that in his 2010 report HMCIPS described the process of slopping out chamber pots as degrading but that was a description attached to the nature of that process in isolation. It was not a description of the overall conditions in which the prisoners were confined and it took no account of any of the positive features of the regime in Peterhead. When chamber pots were in use Mr Wemyss described prisoners filling the pots to the edge and walking them round the landing, spilling the contents. He said it was a disgusting experience and the stench of raw waste was at times horrendous. He said the change when chemical toilets were introduced into Peterhead in 1994 was "day and night" and I accept that it was a very major improvement. I accept that it was this former process he was discussing in conversation with Professor Canter. Mr Hebden said the chamber pot system was very unpleasant with a terrible smell and lots of spillages. The chemical toilet is an improvement: the risk of spillage is far less; they are opaque not see-through; and they have fixed lids. The waste is contained within a sealed chamber with a disinfectant which if properly charged will control odours. The fact that the unit is sealed is a major advance on the use of a chamber pot where the open receptacle will remain in the cell even when full. The fact that it is sealed also greatly reduces the risk of spillage. Even Professor McManus described them as an advance, although not a long term solution. He said staff were happier with the post 2007 regime as there are fewer spillages and the smell dissipates more quickly. Professor McManus's views were however coloured by two matters: the first is that he started from the personal opinion that access to a flushing toilet was a basic human right, and that "very little more" was required to create a degrading situation. However, it is clear from the approach of the ECtHR that they look at the system as whole and do not single out one aspect of the conditions in isolation. Secondly, he proceeded on what I considered to be a misinterpretation of Malenchkov in two respects. First in that he considered para 140 to contain the ratio of the decision when it is clear that it is contained in para 141. Even if he had been right that the ratio was in para 140, the comments in that paragraph related to the use of a bucket or chamber pot and not to all systems which required slopping out to any degree. Professor Canter said that the chemical toilet was a clear improvement and that the "experience of being degraded or dehumanised by the conditions are thus not as great as other conditions on which I have reported" although their use carried potential for causing stress and making prisoners feel less than human. The chemical toilet had a proper lid on it which if used effectively would keep odours at bay. The point about reduction of spillages seems to be supported by the evidence of Wilson who described his work as a sanitary passman. Although he did not use a trolley to transport the chemical toilets and carried them, the contents, although as he put it "sloshing about" never spilled out.

[277] Having regard to the evidence about the nature of the regime as a whole, I do not consider that the petitioners' human dignity was diminished by the conditions of their incarceration or that they were thereby subjected to inhuman or degrading treatment. I conclude that there has been no breach of Article 3. I consider that although the procedure prior to 2007 was less satisfactory it was not so to such a degree to render the conditions contrary to Article 3. Nor do I consider that giving prisoners the opportunity to join a sanitation work party for which they were paid and trained does so.

Article 8
[278] I do not accept the contention for the respondents that no consideration under Article 8 arises if the court has not also found a breach of Article 3. The ambit of Article 8 is very wide and I agree with
Lord Bonomy that the scope of "private life" can include the regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness. In Napier there were elements which are lacking in the present cases: the shared cell and the skin condition, and these clearly had a bearing on the court's final decision. However they did not have a bearing on the fundamental question of whether the activity could come within the scope of Article 8. The more difficult question is whether the requirement to use a chemical toilet in the circumstances specified constituted an interference with the petitioner's right to respect for private life. In Napier it was not the act of slopping out alone which constituted the interference with Article 8 rights. To require a person to defecate into a bucket which must be slopped out may well constitute an interference with respect for private life but that is not what I am asked to determine. I am not convinced by the petitioner's suggestion that this matter is to be determined on the basis of a "continuum" running from Article 3 through to Article 8 on some diminishing scale. The two articles are addressing different matters and under Article 8 the question is simply whether the actings constitute and intrusion which has reached a level of seriousness to constitute an infringement with the right to respect for private or family life. The parties were agreed that the seriousness of the intrusion was relevant to whether there was an interference under Article 8. In addressing the matter in this case I start from the position, as stated above, that I do not accept that access to a screened and flushing lavatory is a basic human right. As I have indicated above, I consider that a chemical toilet is in a different situation from a bucket or a pot. A chemical toilet is a device intended for use as a toilet and with the benefits over a chamber pot which I have recorded above: as the respondents submitted it is a toilet of a different kind. Accordingly, I have concluded that to require the use of a chemical toilet in a single cell in circumstances where a sanitation work party is engaged to empty them does not involve an interference with the respect for the petitioners' private life. However, prior to the institution of the work party when individuals had to slop out the chemical toilet themselves, and queue to do so in the circumstances herein narrated it did in my view constitute such an interference. That goes entirely beyond a situation where, as the respondents put it, one type of lavatory is provided over another. I do not consider that recruiting someone to a sanitation work party for which they are paid and in respect of which they receive certain privileges, constitutes, with the use of the chemical toilet, an interference. Nor do I consider there to have been an interference when a person could have availed himself of the services of a work party but chose not to do so. But to be forced to queue in a line of others with a receptacle containing his own waste and to have to empty it in the presence of others queuing for the same purpose all in the circumstances outlined above does constitute and infringement of Article 8.

[279] I am also satisfied that this is a case in which damages should be paid in just satisfaction of the infringement and I consider that the sum of 500 should be awarded to each of the prisoners affected.

[280] In the case of Wilson, I will sustain the respondents' second to sixth pleas in law and refuse the prayer of the petition. So far as Greens and Stanger are concerned

I will repel the first, fifth and sixth pleas in law but sustain the second and seventh pleas in law. In the case of Greens the 8th, 9th and 10th pleas in law will also be repelled. I will accordingly pronounce declarator and award the sum of 500 each in just satisfaction. I will repel the third and fourth pleas in law since I do not consider it appropriate for the governor to be included and because I do not accept the petitioner's contentions about culpable failure to act on the part of SPS. I will reserve the question of expenses.

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