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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Grant & Anor v The Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/3379.html Cite as: [2011] EWHC 3379 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) DESMOND GRANT (2) ROGER CHARLES GLEAVES |
Claimants |
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- and - |
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THE MINISTRY OF JUSTICE |
Defendant |
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Roger Charles Gleaves acting in person
James Eadie QC and David Pievsky (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 17, 18, 21, 22, 23, 24, 25, 28 and 29 November 2011
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Crown Copyright ©
MR JUSTICE HICKINBOTTOM :
Introduction
The Claims in Brief
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
In this case, the Claimants do not suggest that their treatment in prison was either torture or inhuman; but they do submit that it was "degrading treatment" within Article 3.
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Claimants contend that the conditions in the prison breached their right to respect for their private life.
Convention Rights
The Proper Approach to Strasbourg Jurisprudence
"...it is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
"I would respectfully suggest that last sentence could as well have ended: 'no less, but certainly no more'. There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected...".
"The [CPT] shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment."
The Living Nature of the Convention
Article 3: Introduction
Article 3: "Degrading Treatment"
The intention or object of the treatment
"The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3."
The fact that the victim is in state detention
"… The suffering and humiliation involved [for there to be a violation of Article 3] must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment.
Nevertheless, under this provision the State must ensure that a person in detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding that unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured."
I have emphasised the particular passage relied upon by Mr Southey which, typical of the Strasbourg court, is repeated verbatim or in substance in several later cases.
The degree of suffering or humiliation caused to the victim by the treatment
"[T]reatment of a mentally ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be capable of pointing to any specific ill-effects."
Hence, certain treatment by its nature may insult and lower the human dignity of the victim, even where, perhaps as a result of his own vulnerability, he is not properly able to appreciate and/or protect himself effectively from the degradation to which he is subject.
"[I]n previous cases where applicants had at their disposal less than three square meters. The court has found that the overcrowding was so severe as to justify of itself a finding of violation of Article 3." (emphasis added)
Strasbourg Case Law: Bucket Sanitation and Degrading Treatment
"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 visits to the sanitary facilities would pose concrete and serious security risks (see, mutatis mutandis, [Peers at paragraph 75, II v Bulgaria (2005) Application No 44082/98 at paragraph 75, Kalashnikov at paragraph 99 and Kehayov v Russia (2005) Application No 41035/98]. The Government did not invoke any such risks as grounds for the limitation on visits to the toilet by the applicant during the period in question…"
He submits that that passage was followed in Radkov (No 2) (at paragraph 49), evidencing a clear and consistent line of Strasbourg jurisprudence.
Article 3: The Burden and Standard of Proof
Article 8: Introduction
"For the applicant to succeed in establishing that the Prison Service has breached her Article 8 rights it would have to be demonstrated that the overall system in respect of the imprisonment was such that it could be said that the state had in fact in all the circumstances failed to have respect for her private... life bearing in mind that she was a prisoner lawfully deprived of her liberty.... The prisoner is entitled to expect that there will be in place sufficient and adequate toileting and hygiene facilities to cope with her requirements and if these facilities are not adequate then her private life may well be infringed."
Article 8: The Indirect Claim
(i) the sanitation regime at HMP Albany carries an unacceptable risk of both Article 3 and Article 8 being breached;
(ii) following R (Medical Justice) v The Secretary of State for the Home Department [2010] EWHC 1925 (Admin) and R (Suppiah) v The Secretary of State for the Home Department [2011] EWHC 2 (Admin), a system that carries an unacceptable risk of illegality is unlawful as a matter of domestic law; and
(iii) that unlawful system of sanitation at HMP Albany is an interference with the Claimants' Article 8 rights.
Prison Conditions at HMP Albany: Introduction
The Sanitation Regime: Historic Reports
(i) open access to out-of-cell sanitation;
(ii) integral sanitation, i.e. each cell having its own toilet and wash basin;
(iii) manual unlocking, where prison staff have physically to unlock a cell when a prisoner wishes to use the toilet; and
(iv) an electronic door locking/unlocking system.
"This system is being considered for a number of establishments. It is expensive, at about £5,000 per cell. It can be a useful option in establishments where drainage services are insufficient for integral sanitation, and where the problem cannot be remedied. However, in prisons where it has not been designed into the original structure it has been known to fail. The system may be a useful option for some establishments, but if installed, manual unlocking would have to be available in case of failure. It is our view that under no circumstances should the retention of chamber pots be seen as an acceptable alternative."
"The Night Sanitation system arrangement was unsatisfactory in that it imposed a degree of unacceptable and degrading 'slopping out'. The denial of access to a lavatory between 5pm and 8am was unacceptable, especially given an average prisoner age of 47 years and the number of those known to be suffering from medical conditions for which quick access to proper lavatory facilities was essential."
She suggested (at paragraph 3.14) that the regime might be in breach of human rights standards.
"If the Night Sanitation system worked, prisoners had very limited access to toilets during periods of lock-up (which could be 14 hours at a time; if the system broke down, they had none. All prisoners were therefore issued with buckets. This is unacceptable in a 21st century prison."
"... On occasions, the entire system broke down, and when this happened staff were detailed to open cells individually, although prisoners were told to use their buckets, sometimes for prolonged periods."
"Accommodation was generally satisfactory, with the glaring exception of Albany's poor functioning automatic Night Sanitation arrangements, which remained unacceptable and degrading";
and further (at paragraph 2.3):
"A lidded bucket was provided to use as a toilet if there were breakdowns or delays with the system, which was degrading and unacceptable...".
"Arrangements for prisoners locked up during the day to access toilets were poor. Prisoners repeatedly told us that if they requested to be unlocked during the day to use the toilet they were threatened with warnings under the [IEP] scheme."
"Unfortunately, it regularly fails, leaving inmates having to rely, to a large extent, on mop and slop."
"A number of prisons including Albany... still had electronic Night Sanitation in use. Prisoners complained of long waits to be able to access toilets, and this resulted in urine and faeces being thrown out of windows. The inadequacy of the system was accepted by some prisons with Albany routinely issuing buckets to prisoners. This was effectively a return to slopping out."
The Prison Service's Response
The Parties' Evidence: Introduction
The Day Sanitation Regime
The Night Sanitation Regime
Other prison conditions
Introduction
Cell size
Lighting
"Normally a desk is provided and the average illuminance on it should be at least 150 lux; the illuminance should not fall below 100 lux, or half the maximum value whichever is the higher, at any point on the desk."
However, Prof Corcoran considered that a prison cell is more akin to a day room or a lounge than a study bedroom; and, for a lounge, the CIBSE Guide recommends a maintained illuminance level of 200 lux.
"Artificial lighting should produce up to 200 lux at table top level".
"The light fitting should have fluorescent tubes to produce the standard lighting level of 200 lux, at cell table height"
I cannot agree with Prof Corcoran that, where PSO 1900 refers to "up to 200 lux", it means "at least 200 lux". As a matter of language, the words cannot have that meaning; and it is inconsistent with Prof Corcoran's interpretation of another document (HM Prison Service Cell Certification Planning Parameters Report: April 1999) that certification requires an illumination of 200 lux directly under the illuminaire. On Prof Corcoran's readings, there was of course 200 lux under the illuminaire, in this case.
Ventilation
"The requirement for ventilation should be:
Cells with mechanical extraction: two changes per hour
Cells with integral sanitation annex: six changes per hour within the annex
Cells with natural ventilation: 16,000mm² of openable area for rapid ventilation, provided in the window; 8,000mm² of permanent openable area for background (trickle) ventilation."
"For certification purposes, the standard of ventilation should be as demanded by Building Regulations, which state:
'Ventilation is adequate if it restricts the accumulation of
- moisture that could lead to mould growth
- pollutants that could cause a health hazard'
A visual check can verify this."
Other Conditions at HMP Albany
"No cell shall be used for the confinement of a prisoner unless it is certified by an inspector that its size, lighting, heating, ventilation and fittings are adequate for health...".
All prisoner accommodation is required to be formally certified as fit for purpose by the NOMS Regional Manager in accordance with Rule 26 of the Prison Rules 1999. Accommodation receives that certification if it is assessed as being in accordance with PSO 1999. HMP Albany has at all times been the subject of that regime. Each month 10% of the cells are checked on a rolling basis generally, but particularly to ensure that they comply with lighting, ventilation and temperature standards.
The Claimants and their Claims
Desmond Grant
"... to be crammed in there with the smell and with everyone emptying their buckets while you were waiting your turn. The smell is so bad that it makes me gag. I have known other prisoners throw up because of the smell..." (25 May 2009 Statement, paragraph 19).
He said that it was "absolute rubbish" to suggest that the sluices were cleaned twice a day, and that Ms Wozencraft was lying when she said that she checked that it was cleaned.
"... if I did make a complaint I would receive a written warning and would be locked up in my cell" (25 May 2009 Statement, paragraph 20).
Roger Gleaves
The Claims: Findings
The Main Article 3 and 8 Claims: Discussion
Limitation
Conclusion