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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Napier, Re Petition for Judicial Review [2004] ScotCS 100 (26 April 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/100.html
Cite as: [2004] ScotCS 100, 2004 GWD 14-316, [2004] UKHRR 881, 2004 SCLR 558, [2005] 1 Prison LR 176, 2005 1 SC 229, 2004 SCCR 558, 2004 SLT 555

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Napier, Re Petition for Judicial Review [2004] ScotCS 100 (26 April 2004)

OUTER HOUSE, COURT OF SESSION

P739/01

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BONOMY

in Petition of

ROBERT NAPIER (AP)

Petitioner;

against

THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review of a decision to continue to detain the Petitioner in inhuman and degrading prison conditions contrary to Article 3 et separatim Article 8 of the European Convention on Human Rights

________________

 

 

Petitioner: O'Neill, Q.C., Collins, Carmichael; Balfour & Manson (for Taylor & Kelly, Coatbridge)

Respondents: Brailsford, Q.C., Dewar, Q.C., Wolffe; R. Henderson, Solicitor to the Scottish Executive

26 April 2004

INTRODUCTION

[1]      By this petition Robert Napier seeks a determination that, prior to conviction and while on remand between 20 May and 27 June 2001, a period of about 40 days, he was held in conditions in C Hall of HM Prison, Barlinnie, Glasgow, which were "inhuman and degrading" in contravention of Article 3 of the European Convention on Human Rights ("the Convention") or, failing that, in conditions which infringed his right to respect for his personal and family life contained in Article 8 of the Convention. In the event that such a determination is made, he seeks damages. He separately seeks damages for physical and psychiatric injury caused by the failure of those in whose custody he was held to take reasonable care for his health by detaining him in conditions which exposed him to the risk of injury to his physical and mental health. While on remand he suffered a severe outbreak of the eczema from which he has suffered throughout his life. He attributed that outbreak to the conditions in which he was held. He also claims that he suffered a mental disorder.

PROCEDURE PRIOR TO HEARING

[2]     
The relevant period of detention began on 18 May 2001. The petitioner was detained in terms of two warrants. He applied to the Sheriff at Airdrie for bail in respect of each. These applications were considered on 25 and 30 May respectively. It was submitted in support of each application that the conditions in which he was being held contravened Article 3 of the Convention. The Crown opposed the applications and they were refused. The petitioner appealed against both decisions to the High Court, and raised the issue of his conditions in associated devolution minutes presented on 13 June. On 22 June Lord Coulsfield refused the bail appeals. At the same time he dismissed the devolution minutes, apparently on the basis that the lawfulness of the conditions in which the petitioner was detained was a matter for the Court of Session and not the High Court.

[3]     
Thereafter this petition was raised and came before Lord Macfadyen for a first order and an interim order on 26 June 2001. Having heard counsel for both petitioner and respondents, Lord Macfadyen granted an order on the Scottish Ministers to secure the transfer of the petitioner to conditions of detention which complied with Article 3 of the Convention, whether within HM Prison, Barlinnie or in any other prison, and that within 72 hours. The respondents conceded that the petitioner had a prima facie case that Article 3 of the Convention had been infringed. Lord Macfadyen found that the balance of convenience favoured granting the motion for an interim order. On 28 June the petitioner was moved from C Hall to the Residential Healthcare Unit within HM Prison, Barlinnie. A reclaiming motion against Lord Macfadyen's interlocutor, on the ground that such an order was incompetent, was subsequently refused without argument. The question posed in that reclaiming motion is the subject of other ongoing litigation.

[4]     
In the course of legal argument before me at the first hearing, parties came to the conclusion that the appropriate procedure for dealing with the live issues in the case was a second hearing at which evidence would be led. That took place on various dates between June and October 2003.

THE PETITIONER AND THE CRIMINAL JUSTICE SYSTEM

[5]     
The history of the petitioner's involvement with the criminal justice system is depressingly similar to that of so many other young men in Scotland. He had a number of prior convictions and had previously been sentenced to detention. However, the offence which gave rise to the period on remand in issue marked a distinct escalation in the criminality of his behaviour. On 9 May 2001 he had failed to appear for trial at the High Court on an indictment alleging assault, robbery and abduction. The arrest warrant granted on that occasion was executed on 18 May 2001. On that date he also appeared before the sheriff at Airdrie and was remanded in custody on a petition containing a charge of attempting to pervert the course of justice in connection with another petition containing a number of charges, including one of attempted murder, on which he had been granted bail in the High Court on 6 April. Throughout the period to which his complaint of inhuman and degrading treatment relates the petitioner was thus committed to Barlinnie Prison in respect of both the arrest warrant granted following his failure to appear for trial at the High Court and the petition containing the charge of attempting to pervert the course of justice. He was detained in A Hall of Barlinnie overnight, and on 19 May was transferred to C Hall. He was a stranger to neither; he had spent time in both between 30 March and 11 April 2001. Prior to that he had spent three other short periods of custody in Barlinnie Prison, namely 20 June 1997, 9-10 January 1998 and 28-30 January 1998, in conditions similar to those which are the subject of this petition.

PRISON CONDITIONS

(a) General

[6]     
In June 2001 conditions in A Hall and C Hall were similar. The evidence in this case concentrated on the conditions in C Hall. In the end there was little factual dispute about the conditions in which the petitioner was held there, and such issues as there were between the parties have been fairly easy to resolve. The petitioner's own evidence of the factual situation, while not always entirely accurate, was not challenged on any significant matters. The same is largely true of the prisoners who gave evidence. Counsel for the petitioner concentrated on three principal features of these conditions, namely (1) the accommodation of 2 prisoners in a cell designed for one, (2) the washing and toilet facilities and the system for their use, and (3) the limited time spent out of the cell and the restricted daily programme of activities. His counsel characterised these as the "triple vices" of overcrowding, slopping out and impoverished regime. While I shall look at each one individually, in the final analysis they cannot be viewed in isolation, since each one has an impact on, and is affected by, the others. In addition, there were separate chapters of evidence in relation to other particular features of the conditions of detention, such as illumination and ventilation of the petitioner's cell. Each of the issues thus explored was relevant only in the context of the triple vices. I shall, therefore, set out my findings about the conditions of the petitioner's detention mainly by looking at these three principal features. I deal with overcrowding first because, although it did not cause slopping out or the general regime applied to remand prisoners, it had a significant impact on both.

(b) Overcrowding

[7]     
There were 180 cells in C Hall, each designed for a single prisoner who would, in accordance with enlightened prison theory of the second half of the 19th century when the Hall was constructed, have ample time to reflect upon the evil or futility of his behaviour, and would, hopefully, resolve not to re-offend. There was neither running water nor a flushing toilet in the cells. During the critical period the total number of prisoners in C Hall varied between 250 and 270. The respondents made much of the fact that prisoner numbers were outwith their control and depended upon court decisions. On the other hand, there was no indication in the evidence that there was any flexibility within the system to cope with variations in prisoner numbers. For example, there was no evidence to suggest that the number of officers on duty would be increased should the number of prisoners increase or should there be a number of staff absent on account of illness. On the top flat of C Hall, where the petitioner occupied cell no.23, there were up to 80 prisoners, all generally held 2 to a cell, and a general day shift complement of 4 officers. The washing and toilet facilities available were constant. At four separate times in the day groups of prisoners were released from their cells to make use of these facilities, which were located together at one end of each flat in an area known as "the arches". The time available for each group remained more or less constant, whatever the numbers and the circumstances. The opportunities available for exercise and recreation were not increased when the number of prisoners detained was increased. On the contrary, the additional demands made on staff often led to a reduction in the provision of these facilities generally, and to prisoners spending more time in their overcrowded cells. The Scottish Prison Service knew that overcrowding had an adverse effect on both the slopping out arrangements and the regime of the Hall in general.

(c) The Cell

[8]     
Within the petitioner's cell the impact of overcrowding was pervasive. For most of the period in issue the petitioner shared his cell. Over the period he had three separate cell mates, between 21 and 24 May, 28 May and 4 June, and 9 and 27 June. The cell was a rectangular box, with a vaulted ceiling which was 2.77 m high in the centre. The door, which opened into the cell, was in the centre of one of the short sides of the rectangle. There was a window high on the opposite wall. The rectangle measured 3.98m x 2.13m, giving a total floor area of approximately 8.47m2, a fairly generous area for a single prisoner, having regard to the time when the Hall was built. However, the injection of a second occupant had a disproportionately restrictive impact on the use that each prisoner might make of the available space, because of the shape of the cell and the equipment provided within that space. The double bunk beds were inevitably located along one long wall, with a table placed opposite against the other long wall. The bed and the table were towards the window end of the cell, at which were also located the storage lockers allocated to each prisoner. Once a chair was placed at the table, there was almost no circulation space between the bed and the table. Since only one chair was provided, one prisoner had to sit on one of the bunk beds. One of the petitioner's principal activities was reading, which he generally did on the lower bunk. Even if two chairs had been provided, the dimensions of the furniture and the space available were such that only one prisoner could sit at, and use, the table at any time. The corner of the cell towards which the door opened was designated by a privacy screen as the place where prisoners should defecate and urinate and store chamber pots and urine bottles. The adjacent corner could not be used for any practical purpose. The petitioner did not complain about having to share per se. His complaint related to having to share in the particular circumstances of that cell. It was rarely, if at all, that he and his cell mate spent less than 20 hours out of 24 within the cell, and that period could be as high as 23 hours. They slept, ate and lived the bulk of their lives within the cell.

[9]     
When the petition first came before Lord Macfadyen, he considered a report by Thomas Andrew Markus, Emeritus Professor of Building Science at the University of Strathclyde, in which he expressed opinions about the inadequacy of both the sanitary arrangements for the petitioner and the time which he could spend out of his cell, and also described the cell itself as grossly inadequate in living space, lighting and ventilation. That report was compiled following a visit to the cell on 1 July 2001. Thereafter those acting for the petitioner instructed others to consider lighting and ventilation in more detail. Before me the evidence of Professor Markus was confined to issues relating to the size and layout of the cell and its furniture. His discipline was architecture. However, when he went to the University of Strathclyde in 1966, he took with him the Building Performance Research Unit, which he had set up in his previous post earlier that year and which was a Multi-Disciplinary Unit studying how buildings "performed" physically or from the social sciences point of view or economically, and so on. On the team was a psychologist David Canter, whose evidence I will deal with later. Within that Unit the first steps in developing the discipline of environmental psychology were taken. Markus has maintained an interest in that discipline, but is not a psychologist. Part of his evidence related to "crowding", which is a psychological concept. It relates to the impact on individuals of excessive occupation of, or activity in, a given space. In that connection, he also referred to certain American literature. I have left that part of his evidence out of account, since Professor Markus did not claim current expertise in the field.

[10]     
What was important in the evidence of Professor Markus, who was a very impressive witness, was his experience of prisons and the standards that tend to be applied to prison design. He concluded that, because of its shape and the layout of the furniture, the petitioner's cell was inadequate for occupation by two prisoners. That view was essentially confirmed by the opinion of John Reid, a Civil Engineer with the Building Research Establishment Advisory Service, who, in conjunction with others, prepared a report on the space standards of the cell for the respondents. However, Mr Reid's concession was based on standards for new-build cells. He maintained that the cell met the standards for the modernisation of an existing cell in England and Wales. By reference to a design plan for such a cell, he stated that most of the individual dimensions of the petitioner's cell exceeded those required by that plan. Professor Markus disagreed in relation to some. The issue could be debated endlessly by reference to various design dimensions of, and activities within, the respective cells. That design plan contrasted markedly with Home Office prison design standards of 1989 for new-build prisons, which set 6.8 m² for a single cell and 14.6 m² for a double cell. In addition, it has to be borne in mind, in relation to both existing and new-build cells, that it was anticipated that prisoners would spend a much greater part of the day out of cell than was the case in C Hall. However, what really matters is that Mr Reid was carrying out an exercise confined to measurement whereas, in stating that the petitioner's cell was inadequate for two prisoners by reason of its dimensions and the layout of the furniture, Professor Markus was having regard to what prisoners were required to do in the lengthy period of time that they had to spend there. His view was that, if one looked beyond metrics at the functional use of the space, then the cell did not satisfy ordinary human needs.

[11]     
Rule 15 of the Prisons and Young Offenders' Institutions (Scotland) Regulations 1994 (as amended) gives Prison Governors power to authorise the sharing of cells. Rule 16(2) provides that each cell shall be of "an adequate size". What may be an adequate size for sleeping purposes only plainly may not be adequate for "living" in for up to 20 hours and more every day in the company of another. "Adequate" is nowhere defined, but the Scottish Prison Service Operating Standards provide at Section 18.1 as follows:

"Prisoners must have a room to sleep comfortably; each have locker space to keep reasonable personal possessions; be able to get up to dress; to sit at a table; and to eat or write a letter at the same time as the other prisoners in the cell; be able to use the toilet in private."

In the petitioner's cell it was not possible for both prisoners to sit at the table and to eat, or write a letter, at the same time. According to Mr Reid's report the Scottish Prison Service have recognised the need for more space in shared cells by providing in their draft Design Manual for new prison cells that there should be a minimum space of 5.5 m² per person or 4.5 m² excluding integral toilet facilities. No other regulations or standards relating to cell dimensions had direct application to the petitioner's cell. However, it is the policy of the Scottish Prison Service to seek to apply the requirements of, and the standards set by, the European Prison Rules (Recommendation No.R(87)3 adopted by the Committee of Ministers of the Council of Europe on 12 February 1987). Rule 15 states that the accommodation provided for prisoners should include "a reasonable amount of space". At no stage was it suggested by any witness, or by the respondents, that the cell was of an adequate size for two people to spend more or less the whole day and night together. Counsel for the petitioner also referred to the United Nations Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders on 30 August 1955) and certain reports of the Committee for the Prevention of Torture (to the work of which I shall refer later), none of which recommended any more specific standards for existing cells. Having regard to the size of the cell, the way in which it was furnished, the useable space, free space and circulation space therein, the time that had to be spent there and the fact that almost all the normal activities of daily living had to be undertaken there, it was plainly small, cramped and overcrowded. It was not a bedroom alone; it was a livingroom, dining room, bathroom and bedroom. The cell was, in my opinion, not of an adequate size for the use to which it was put.

[12]     
The adverse impact of two people occupying a space designed for one could, of course, be tempered by the quality of other features of the cell, such as illumination and ventilation. Natural light and fresh air entered through the single cell window, measuring 1m wide x 0.54m high, giving a gross area of around 0.54m2. The passage of daylight through that window was obstructed by three layers of security material - 20mm wide metal bars, angled external metal louvers and a mesh of 4mm thick steel rods. The window was made of plastic material, which had lost a measure of clarity with the passage of time and the accumulation of dirt on the exterior.

(d) Illumination

[13]     
The illumination of the petitioner's cell by both natural and artificial light was considered by Michael Corcoran, Professor of Building Services Design in the Department of Architectural and Building Science at the University of Strathclyde, and by Dr Paul Jeffrey Littlefair, Associate Director of Environmental Engineering Centre of the Building Research Establishment Limited. They gave evidence as witnesses for the petitioner and respondents respectively on successive dates. That is an example of the co-operation between parties which led to all the expert evidence in relation to particular issues being heard together. The amount of daylight penetrating a cell is calculated as a percentage of the daylight available in a completely unobstructed adjacent external location, and the percentage thus calculated is referred to as the "average daylight factor". Both witnesses gave extremely complex evidence about how they made the calculation. However, it was plain that they had arrived at significantly different results because of differences in the factual information on which they proceeded, such as the state of the window itself and the measurements of the various bars and grills. I invited them to meet at the prison to look again at the window and try to agree on the factual situation. They met, then exchanged e-mails and ultimately presented an "Agreed Statement", in which they resolved the factual differences between them and recorded the differences that remained in their approach to the calculation of the impact which the obstructions at the window had on the daylight entering the cell. As a result, they concluded that the average daylight factor lay within the range 0.3%-0.36%. These figures were then used by them to calculate the length of time during which daylight made a useful contribution to illumination in the cell. The average illumination in any area is expressed as a number of lux. There were no standards set for Scottish prisons. However, the standards set for domestic accommodation provided useful comparative material. The average daylight factor recommended for a bedroom is 1% and for a livingroom 1.5%. An average daylight factor of 1.5% would provide 200 lux or more, that is good natural lighting conditions for reading or working, for 48% of the hours between 0900 and 1900 over the period of a year, i.e. 4 hours 48 minutes per day on average. The same average daylight factor would provide 100 lux or more, which is good practice for bedroom lighting, for 6 hours 44 minutes per day on the same basis. In contrast, the average daylight factor of 0.3% provides an average illumination of 200 lux or more for just over 3 minutes per day and 100 lux or more for approximately 1 hour 45 minutes per day. The average daylight factor of 0.36% extends these periods to 20 minutes and 2 hours 24 minutes respectively. From that evidence it followed that the provision of artificial light was essential. There was, in the end, no disagreement between the witnesses about the impact of that artificial light. It was provided by a single 1.5 metre long fluorescent light located at the centre of the ceiling of the cell, producing an estimated 99 lux at tabletop height. The impact of putting on the light, when combined with the penetration of daylight to the cell, meant that for 1 hour 45 minutes per day on average there was a total illumination of 200 lux. A level of illumination of 200 lux appeared to be the standard generally applied in prison cells in England and Wales, both existing and proposed, and the standard proposed in the draft Design Manual for future cell provision in Scotland.

[14]     
It follows that, throughout the hours of darkness and for most of the daylight hours, the main source of illumination within the cell was artificial lighting. Dr Littlefair considered that illumination of around 100 lux was sufficient for casual reading. In coming to that view he relied, to some extent, on the only practical study to which reference was made in the course of the evidence. In 1983 lighting experts Simpson and Tarrant measured illuminances in 101 dwellinghouses, of which one half were owner-occupied and the other half rented. In both categories the median illuminance used for reading, both prolonged and casual, was 70 lux. Most of the reading took place at illuminances below 100 lux, indicating that what is desirable, and what people generally tolerate, can vary greatly in this field. In expressing that opinion about the adequacy of the lighting for casual reading, however, Dr Littlefair was not aware that the petitioner read mainly in the lower bunk. He considered that that was the worst illuminated part of the cell and the worst place to be reading. His opinion had been expressed in relation to the level of illumination at the tabletop. Professor Corcoran considered that even at the tabletop the illumination level would fall below 100 lux because of the shadow cast by the reader's body. He agreed that the problem would be even worse in the bottom bunk. He was concerned about the degree of eye fatigue that might result. The simple expedient of a table lamp was not available because there was no power in the cell.

[15]     
Even allowing for the fact that reading was one of the petitioner's main activities, the poor level of illumination is of fairly minor significance in the overall evaluation of conditions in the cell. The chair in the cell could be placed in such a position that a prisoner could read in a degree of illumination that has been shown to be generally tolerated for casual reading. The real problem related to the fact that there was only one chair and very little space for two occupants. As a result, the petitioner was compelled to read where the light was plainly inadequate for that purpose. While, on his own account, he was able to read, the expert evidence gave support to his claim that he suffered eye strain when reading. It also made it plain to me that the cell was gloomy, and that illumination was certainly not a factor which alleviated the adverse impact of the occupation of a cell of that size and shape by two prisoners. Rule 16(a) of the European Prison Rules provides that, where prisoners are required to live or work, the window shall be large enough to enable them to read or work by natural light in normal conditions. Article 11 of the United Nations Standard Minimum Rules for the Treatment of Prisoners provides that artificial light shall be provided for prisoners to read or work without injury to eyesight. Neither of these recommendations was met in the petitioner's cell.

(e) Ventilation

[16]     
The expert evidence in relation to ventilation of the cell was also of limited value. Professor Corcoran was again the petitioner's expert, while the respondents led Christopher Hugh Sanders, a graduate in physics and in meteorology, who works at the Scottish Laboratories of the Building Research Establishment and whose particular professional interest is in problems related to dampness and ventilation in buildings. Mr Sanders examined the ventilation of the cell on 5 July 2001. At that stage he concluded broadly that the level of ventilation was adequate for two occupants. However, in the course of cross-examination he accepted a number of points which have a bearing on that conclusion, both in relation to the situation when the window was closed and also when it was open. The most important related to the extent to which the cell window could open. The window was in three parts. The central part could be slid to the side to leave an opening of about 5 cms. That was the unchallenged evidence of the petitioner. When Mr Sanders visited the cell on 5 July 2001, he had been able to open the central panel to the full extent of 25 cms. He acknowledged that, if it could be opened only about 5 cms, that would have a significant impact upon the findings he had made about the ventilation of the cell which was, in any event, on his original assessment barely adequate. Although Scottish Building Standards did not apply to the cell, both witnesses considered it appropriate to refer to them. I derived no particular assistance from any other standard or recommendation referred to. The Building Standards required a window opening of at least 3.3% of the floor area of a room. In fact, the opening represented only 0.3% of the floor area. He accepted that that made a material difference to his calculations.

[17]     
The other factors on which he accepted that he might be wrong were of less significance. Where the floor area of a room is less that 10 square metres, there should be a trickle ventilator. In the petitioner's cell there was a grilled opening high on the wall on which the door was located, and another at low level on the window wall. Mr Sanders noted movement of air through these openings, which varied depending on whether the window was open or closed. After the hearing had begun, Professor Corcoran had the opportunity to visit the petitioner's cell and examine what lay behind these grilled openings. These apparently had been part of a heating system no longer in use. Neither opening provided access to any significant quantity of fresh air. Thus, while Mr Sanders had observed movement of air through these openings, it was impossible for me, in view of Professor Corcoran's findings from his own examination, to conclude that that was fresh air. Mr Sanders accepted that neither grilled opening could be regarded as a trickle ventilator. It was unfortunate that on 5 July 2001 the wind direction was from the east rather than from the prevailing south-west. The petitioner's cell faced east. The ventilation situation was, therefore, not that normally encountered. Both experts were agreed that, because of the configuration of the hall, the other halls nearby and an adjacent chapel, the difference in ventilation that would result from the wind coming from the prevailing direction was difficult to judge. All that could be said, and indeed was accepted by Mr Sanders, was that his report was inaccurate insofar as it invoked the particular wind direction on 5 July as supporting his view that the rates of ventilation measured would be slightly less than the average conditions experienced in the cell. In support of the same point Mr Sanders had also relied in his original report on 5 July being what he described as "an unusually calm day". Following consideration of the views of Professor Corcoran, his revised opinion was: "In summary, the ventilation rates in the cell were not measured on a windy day and there is no reason to suppose that they are higher than would normally be experienced". He also initially failed to make any allowance in his calculation for the need to provide for the removal of tobacco smoke and the malodour caused by the use of chamber pots and urine bottles. Again following consideration of the views of Professor Corcoran, he accepted that it was evident that the fresh air supply to the cell at the time the measurements were taken was not sufficient to cope with these odours. The petitioner and two of his cell mates smoked. On the other hand, it has to be observed that the odours of defecation occurred seldom in that cell (discussed later), and that the principal purpose of additional ventilation in rooms where smoking takes place is to protect non-smokers.

[18]     
These concessions having been made, the respondents did not challenge Professor Corcoran's view that the ventilation of the petitioner's cell was inadequate. The ventilation rates within the petitioner's cell fell short of what both witnesses agreed were the recommended minimum rates where smoking was permitted at all. I have concluded, having regard to the activities which were carried on in the cell, the fact that the sole effective position for ventilation was a window which was 0.5m in height and which, when slid fully to the side, provided an opening of only 0.05m, and the evidence of the expert witnesses, that the shortfall was not insignificant. However, the main point to note is that the expert evidence supported the description of the atmosphere in the cell given by the petitioner and the evidence of other witnesses about the atmosphere in similar cells. It is easy to understand why prisoners, who shared cells which had similar ventilation arrangements, described them as "stuffy", "clammy" and "smelly". One member of staff, James Cockburn, agreed that he would be "hit" by the smell in cells, including urine and faeces, and that cells could be "fairly stinky". The arrangements for ventilation did nothing to modify the impact on the occupants of the limited space available to them in the cell; rather they compounded the inadequacy of the space by allowing any unpleasant elements to remain in the atmosphere and by failing to provide an adequate supply of fresh air.

(f) Slopping Out

[19]     
There are two principal components to slopping out - (1) the use of a bottle to urinate and a chamber pot to defecate in the cell and (2) the practice of groups of prisoners emptying both within the arches up to four times a day. As I have already explained, the bottles and the chamber pots were stored in one corner of the cell near the door, delineated by a modesty screen. The petitioner or his cell mate, when urinating or defecating, would do so behind the screen, which concealed the private parts of the prisoner there and much of his body, but was too short and narrow to conceal him entirely from view and had no impact on any sound or smell generated. The petitioner and his cell mates coped remarkably well with this situation. The petitioner did not use a chamber pot on any occasion. Only one cell mate did so, and that was on only two occasions. Thus the petitioner and his cell mates took a generally responsible and orderly approach to the challenge of causing as little offence as possible to each other. That is against a background of being locked up without any possible access to flushing toilet facilities between, at the latest, 9.00pm and 7.30am on weekdays, and from about 4.30pm until 7.30am on Saturdays and Sundays. In addition, daytime staffing levels were such that requests to go to the arches, which could be made by pressing a buzzer in the cell, could generally not be attended to immediately and often had to be refused. However, the petitioner found the very experience of being in the same room as a relative stranger, while he was defecating, disgusting; added to that, the two occasions involved particularly unpleasant and sickening smells. He was also angry because he did not think either was necessary. Until the chamber pot was emptied, the smell pervaded the cell. The act of urinating presented no great problem, as one might expect, since it is commonplace for men to urinate within the presence of others. The petitioner's complaint related to the smell of urine, which lingered even when the tops were applied to the bottles. Toilet installations and arrangements were not prescribed by any specific regulations or standards. The United Nations Minimum Standards and the European Prison Rules call for sanitary installations that are adequate to enable every prisoner to comply with the needs of nature in a clean and decent manner or in clean and decent conditions. That recommendation was not complied with in the cell nor, as I shall now discuss, in the arrangements for disposal of waste.

[20]     
In contrast to the general situation within the petitioner's cell, the core element of slopping out - emptying the containers - was a chaotic event, particularly in the morning. The petitioner's evidence about the process was supported in essential respects by the evidence of three other prisoners, Brian Smith, Ian Durie and Alan McBride, who were remanded in C Hall at the same time. McBride occupied a cell on the same level as the petitioner, the top flat of four; Durie was on the level below, the third flat; Smith spent time on both the second and third flats. I have left out of account entirely the evidence of one other prisoner, Mark Leslie Burke; it was in the end conceded that he was not in C Hall at the relevant time. The others, including the petitioner, gave their evidence in a largely straightforward manner. There was the occasional tendency to exaggerate, which I think was fairly easy to identify, and there were occasional patent inaccuracies. For example, the petitioner thought that prisoners generally made two trips between their cells and the ablutions at the morning slop out, first of all to empty out containers and then to fetch other items such as toiletries and towels, whereas the evidence of other evidences demonstrated that there was only one trip. I did not consider that that error was of such significance as to affect materially my confidence in the general reliability of the petitioner's evidence. All 4 prisoners, on whose evidence I have relied, appeared to give evidence in a straightforward and honest manner. Albeit Durie and Smith were on different levels of the Hall from the petitioner, it was not suggested that the circumstances on these levels were materially different. The ablutions or arches were at the end of the each flat and comprised 3 showers, 4 lavatories, 6 urinals and 14 washhand basins, for the use of up to 80 prisoners on the flat. There were also two ceramic sluices in which prisoners could dispose of the contents of their chamber pots and urine bottles; they could also use the lavatories for that purpose. Each sluice had hot and cold running water taps and a flush mechanism. Next to each of the sluices was a ceramic Belfast sink, the waste from which also ran into the sluice. The pots and bottles could be rinsed in either. In June 2001 a tank had been installed to provide disinfectant solution for the sluice, but was not in use. Disinfectant tablets were issued to prisoners when they were first admitted to C Hall. There was conflicting evidence from prison staff Alan Dickson and Calum Kincaid about how readily available containers of disinfectant were at the time. However, the petitioner made no complaint about the absence of disinfectant, and Brian Smith said that it was available as long as the pass man had put it beside the sluice. The evidence did not establish that there was a failure to provide disinfectant for chamber pots and urine bottles.

[21]     
The Hall began to come to life at about 6.30am. The first task for officers was to establish that all prisoners were still present and relay that information to a central control. It was only once every prisoner in the prison had been accounted for that cells began to be unlocked. Those who had to attend court were released first. Thereafter the cells generally were unlocked, about a quarter at a time. The order in which they were unlocked was rotated, so that every 4 days each prisoner would be in the first batch. There was some overlap, but generally speaking the next quarter were released after most of the previous quarter had been locked up again. Since the prison timetable was fairly inflexible, prisoners had about 15 to 20 minutes, and sometimes less, to slop out and use the facilities at the arches. According to Hamish Lorrain-Smith, who was manager of C Hall at the time and is now personal assistant to the Operations Director of the Scottish Prison Service, the whole process should be completed at about 8 am. As a result, between 15 and 20 prisoners would descend upon the ablutions area together, all carrying a number of items: their urine bottles and chamber pots, where appropriate, to be emptied; cutlery and plates to be rinsed, either at the Belfast sink or the sluice; a water bottle to be filled with drinking water from a tap adjacent to the washhand basins; possibly a rubbish basket to be emptied; and a towel and personal toiletry items. This was the only occasion on which a prisoner was permitted to take a towel to the ablutions. Each prisoner had a basin and a jug which he could also take to the arches and fill with water to use in his cell for washing later. The last prisoners from the previous group might still be there. Each had then to slop out, wash/shower, shave and go to the lavatory as necessary. The evidence in general confirmed the petitioner's description of the process as a "free-for-all". Queues built up to use the various facilities, particularly the sluices and the showers, since there were only two and three respectively. An officer was on duty to take bookings for telephone calls, issue razor blades, take letters, note requests to attend the nurse, social worker or dentist, and note requests to attend PT, for which there was a very limited number of places. I was left with the clear impression that everything was done in a rush and under pressure.

[22]     
Although the petitioner never had to empty a chamber pot, it was plain, from his evidence and the evidence of other prisoners and prison staff, that on a daily basis a significant number of chamber pots were emptied as each group of prisoners went to the arches. Each of the other prisoners who gave evidence used his chamber pot and also had a cell mate who did. Most prisoners also had urine bottles to empty. There was a practice among prisoners of putting faeces into plastic bags with a view to minimising the smell in the cell. In the past these had been thrown from cell windows to improve the atmosphere within the cells. By May 2001 a mesh covering had been placed outside each cell window to prevent this practice. Prisoners would instead attempt to flush these bags down the lavatories. As a result lavatories would become blocked and might overflow. Not every prisoner would flush the sluice after depositing material there, resulting in an accumulation which was slow to clear and could cause a blockage and overflow. Although the petitioner did not mention such overflows occurring, there was other evidence from prisoners and staff which led me to conclude that blockages and the resultant overflow were a problem throughout the Hall. A strong, foul smell of a mixture of urine and excrement permeated the arches. The hot water taps were often left running into the sluices and the heat and steam appeared to exacerbate the smell. The petitioner described the arches as "stinking" and the smell as "strong, not gut wrenching but not far off". As a result of the number of prisoners carrying several items converging on and leaving the ablutions area simultaneously, there were often collisions and spillages which might contaminate the shoes, clothing or skin of a passing prisoner. Durie described the atmosphere at slopping out as "stinking" and the smell as "awful" and "incredible". McBride described the smell as "horrible" and "stinking". These descriptions were not challenged. Indeed they were confirmed by the evidence of staff. Prison officers who worked in C Hall said that spillages occurred in and around the arches, and variously described the atmosphere in the course of slopping out. James Cockburn, a residential officer who worked on the top flat, described the stench there as "not very nice at all". He also said of the practice: "I don't like it at all; it wasn't nice". Alan Kennedy Dickson, a gallery officer who visited each flat to distribute underwear, said: "In the morning slop out it is very smelly, I can say that." Another residential officer, Calum James McLeish Kincaid, who was on the third flat, said that the smell could sometimes be pretty bad.

[23]     
From November 1996 until November 2001 Hamish Lorrain-Smith was responsible for the day to day management of the Hall and the regime operated therein. Although his office was not in the Hall, he was a frequent visitor, spending anything from 20 minutes to 2 hours there at any time on a given day. He personally observed slopping out once or twice a month. He described the smell, from where he would stand outside the arches, as "unpleasant", and the practice as "unacceptable" for the year 2001. It was his view that the ablutions area was insufficient to meet the needs of the eighty or so prisoners who were required to use it. He acknowledged that one of the standards the Scottish Prison Service had set itself was to allow every prisoner 24 hour access to a toilet, and that that standard was not met in C Hall at the relevant time. He and the other members of staff who gave evidence were, not unnaturally, fairly defensive. I was left in no doubt, by the evidence of those who experienced slopping out in C Hall around the time of the petitioner's detention, that it was an abhorrent practice, and that people in general in Scotland would have found it to be so, had they had the misfortune to experience it.

[24]     
Charles Stuart Goodwin, Professor in Microbiology, St. George's Hospital Medical School, University of London, was led as a witness for the petitioner, and gave evidence of the risk of infection that was posed by the conditions in which the petitioner was detained, and particularly by the slopping out process. The respondents relied upon a report prepared by Alistair Leonard, Consultant Medical Microbiologist and Infection Control Doctor, Monklands Hospitals, Airdrie. Although the severe outbreak of eczema suffered by the petitioner while in detention was described as "infective" or "infected" eczema, the source of the infection was not identified. One possible source were the common bacteria staphylococci aurei. The damaged skin of a person with atopic eczema can easily become infected by those and related bacteria. Atopic eczema is a congenital condition which causes the petitioner's skin to appear generally red and thickened and which can flare up into an outbreak of infected open sores. When the eczema is active, breaks appear in the skin. Bacteria alighting on the broken or damaged skin cause infection. About a third of the population carry staphylococci aurei in various parts of the body, particularly the nose, and including the groin and armpit. Both experts appeared to have proceeded on the basis that, if infection was by staphylococci aurei, the most likely source was the infected individual himself. The sole way in which counsel for the petitioner sought to bring home responsibility for the outbreak to the respondents was by relating it to stress caused to the petitioner by exposure to the conditions of C Hall. Stress is a recognised trigger or cause of rapid flare-ups of eczema which might then become infected.

[25]     
The main significance of Professor Goodwin's evidence was to point to features of the prison conditions which gave rise to unnecessary additional risks of infection by staphylococci aurei, diarrhoea, tuberculosis, hepatitis and HIV. No attempt was made on behalf of the petitioner to show that any of these conditions was present in C Hall at the time, even by reference to general statistics. Dr Leonard did establish that, while the petitioner was in C Hall, two prisoners had diarrhoea. However, there was no evidence of any connection between them and the petitioner. While living in close proximity to another in a poorly ventilated cell may increase the risk of acquiring lung disease, that risk depends upon the other in close proximity being so affected. None of the petitioner's cell mates was a witness, and it was not suggested that any suffered from any particular ailment. Professor Goodwin raised the possibility of the transfer of staphylococci aurei through the shedding of skin scales which might be airborne into contact with the petitioner. Dr Leonard regarded such contamination as unlikely because the scales would simply fall to the floor. I do not feel confident about deciding either way on the strength of the material presented. What was clear, however, from the evidence of Professor Goodwin and the report of Dr Leonard was that slopping out created an additional risk of infection by conditions such as diarrhoea and hepatitis A which may be transferred through contact with human faeces. Normally urine is sterile with no infective bacteria present. The only exception is where the provider has a unitary tract infection, an unusual situation in young adult males, and a situation for which there was no evidence in this case. Traces of faeces on the hands can be transmitted by way of contact with handles and other surfaces to others. Spillages and splashes may result in contact with the skin and clothing of others and subsequent transmission to their hands and then to food. That risk arose because of the very process of carrying faeces to the arches and slopping them out there. The risk was increased by the practice of taking eating utensils and cutlery to be washed in the arches. The risk was further increased by features of the system which discouraged prisoners from washing their hands, which is the principal means of preventing faecal infection. While it is the act of washing rather than drying the hands that really matters, it is plainly a discouragement to washing to refuse to allow a prisoner to take a towel with him to the ablutions. In addition, a wet hand is likely to pick up more bacteria than a dry one. There was, however, no evidence to suggest prisoners are more susceptible to outbreaks of diarrhoea or other infections than people in other institutions. There was some evidence from Professor Goodwin, and material in Dr Leonard's report, about the inadequacy of the arrangements for cleaning mops, but that is of no significance to the petitioner's case. Professor Goodwin also commented on the limited amount of exercise available for the petitioner. In his opinion that would, over time, reduce the petitioner's general fitness level and his ability to resist infection. However, in the absence of evidence of the amount of exercise which the petitioner took when at liberty, and having regard to the fairly short period that he was confined in these conditions, I do not consider that that was a significant factor in this case. Indeed, while I am prepared to, and do, hold it established that there was an increased risk of incurring infection caused by the slopping out process, I do not consider that risk to have been high. On the other hand, I formed the clear impression that the petitioner viewed the unhygienic conditions of the whole slopping out process as the cause of the severe outbreak of infected eczema and as a constant threat to his vulnerable skin.

[26]     
As prisoners completed their morning routine surrounding slopping out, they were again locked into their cells. Shortly thereafter they were released once more to collect breakfast, which they ate locked in their cells. There were further, much shorter slopping out periods after the midday meal, which was taken around noon, and the evening meal, which was taken around 4.30pm, and also some time after 7.00pm before prisoners were locked in for the night. On these occasions, in addition to slopping out the urine bottles and chamber pots, prisoners had the opportunity to have a quick wash and also to wash their eating utensils. They could also use the lavatory if it was not already occupied. As I have already said, they were not permitted to take a towel. No member of the staff was either able or willing to explain why this should be so.

[27]     
Slopping out was, therefore, a major activity in the daily life of the Hall. The timetable for the rest of the day's activities was fitted into the intervals of time between slopping out times and their associated meal times. This review of the place of slopping out in the daily routine underlines the significant part the arrangements for the discharge of bodily waste played in the everyday life of the Hall. That significance was heightened by the fact that the disposal of bodily waste was so closely associated with the very limited extent to which prisoners were released from their cells in the course of a normal day.

(g) Daily Regime

[28]     
After breakfast the day continued with a brief period of release to walk round the landing to obtain a change of underwear. Every prisoner had a daily period of exercise. That might be in the morning or afternoon. In the case of the petitioner it was in the afternoon, around 2.00pm. If the weather was inclement (which was often), the exercise consisted of walking around half of the landing for between 40 minutes and one hour. Exercise out of doors consisted of walking round the exercise yard for a similar period. Physical training periods of 45 minutes each were available three times a day. Since only 12 prisoners could participate in each period, only 36 prisoners out of the average of about 250-270 in the Hall were able to enjoy physical training each day. The petitioner did not seek to do so in view of the condition of his skin. There was no obligation on untried prisoners to work. The Scottish Prison Service concentrated on providing work opportunities for convicted prisoners. The only work available in C Hall was dishwashing in the kitchen for about 20, and a few jobs as passmen. Because of the condition of his skin, the petitioner could not work in the kitchen. However, had he been able to do so, the work would have consisted simply of washing dishes and cleaning up the kitchen once a day for a fairly short period of time. A limited number of educational programmes were available. These were designed mainly to deal with difficulties confronting prisoners, such as drug and alcohol problems and literacy. The petitioner did not attend any, since he did not consider they would benefit him. Such evidence as there was that he had smoked cannabis and had had a "drug debt" did not provide a basis for thinking that he was wrong about that. A recreation period in the evening was available in theory for each prisoner twice a week for about an hour and a half. However, it was regularly cancelled (at least five times in June 2001) because of staffing difficulties, and prisoners never knew when they were likely to have recreation. If recreation was not available, then prisoners were locked in their cells from 7.30pm until 7.00am the following morning. Further irregular events would lead to a prisoner being out of his cell for varying periods. The petitioner had visits from friends on three occasions and about eight visits from his solicitors. These visits varied between 10 and 30 minutes in length. He visited the canteen on eleven occasions, each visit taking about 10 to 15 minutes. He attended the clinic on a number of occasions. On three days he had to attend court, and was thus away from the Hall from about 7.30am until possibly as late as 6.30pm. Going to and coming from court involved being held in the reception area of the prison for a significant period of time in a cramped reception cell, nicknamed a "dog box". These are cubicles about the size of a court witness box, with a wooden bench, a spy-hole in the door, and an electric light bulb. In coming from and going to court, the petitioner spent an average of two hours in each direction in the box, usually alone, but occasionally with another prisoner. No explanation was offered by the respondents for this oppressive form of detention. Counsel for the respondents submitted that the evidence relating to the dog boxes should be left out of account in the absence of record therefor. However, the matter first arose in cross-examination of the petitioner. No objection was taken to later references to them. I do not, therefore, consider it appropriate to disregard that evidence. Other than in the circumstances I have just outlined, the petitioner spent his time in his cell, generally in the company of a cell mate. He liked to play cards, read and listen to the radio.

(h) Food

[29]     
The petitioner made a number of complaints about the food. He thought that the portions served were inadequate. That was not supported by any other evidence. There was some support for his complaints about food being served cold and about the monotony of the menus. However, I thought that the position was best summed up by the evidence of the prisoner Ian Durie. I found him the most impressive of the prisoner witnesses. He described the food as "nothing special - just jail food". He gave measured, spontaneous answers to questions. It was on the basis of his evidence, confirming the evidence of prison officers, that I accepted in para [21] above that each group were allocated about 15 to 20 minutes for slopping out and ablutions in the morning. The other prisoner witnesses suggested that a much shorter time of between 5 and 10 minutes was available. That was perhaps their genuine impression, since there was undoubtedly pressure on the prisoners to get everything done in a bit of a rush. In contrast, the evidence of Durie not only sounded more reasonable, but was consistent with the time available in the daily programme for that activity. It was accepted on behalf of the respondents that there were occasions when food was served cold, because it was brought from a central kitchen and could cool down before being served to the prisoners. However, the other complaints made by the petitioner and others about prison food were too vague for me to conclude that the quantity, quality or temperature thereof had any significant bearing on the issues arising in this case. Both parties presented reports by experts in nutrition, who had evaluated the prison menus. Following consideration of these, counsel for the petitioner conceded that it could not be claimed that the petitioner was exposed to any risk of detriment to his health from the food provided.

(i) Cleanliness of Cell

[30]     
Although the petitioner complained that the walls of his cell were not clean and required to be scrubbed, and claimed that he did not have access to material to clean to walls, he acknowledged that cleaning material, including a mop, were made available once a week and that he used them to clean the floor. He did not apparently try to clean the walls. There was no evidence that he made a complaint about the lack of cleanliness in the cell, nor that it actually was a significant feature in the context of the issues in the case.

(j) Attitude of Staff to Prisoners

[31]     
There was some evidence from the prisoner witnesses, including the petitioner, that a section of the staff treated them with contempt. The Hall was manned by three shifts. The nightshift involved only two officers. The other two shifts were manned by two discrete groups or squads of officers on a rotational basis. Officers from both groups gave evidence. One group had acquired a reputation for making life difficult for prisoners and had been nicknamed "the dog squad". It was suggested by some of the prisoners that they would show their contempt for prisoners by addressing them by their surnames, by swearing at them and by addressing them in an offensive way. Officers on that squad would also be slow to answer the buzzer when a prisoner pressed it to attract the attention of staff. They would be less likely than those on the other squad to allow prisoners access to the toilet in the course of the morning or afternoon. I found the evidence on this subject vague and unspecific. No prison officer was identified as part of this squad. I also thought it significant that the prisoner witness Durie regarded the fact that prisoners were often not allowed to go from their cell to the toilet during the day to be the result of the ratio of staff to prisoners, rather than any deliberate conduct on the part of staff. I again did not consider this complaint to be of significance in the context of the issues in the case.

(k) Underwear

[32]     
Underwear was supplied and could be changed daily. The petitioner was unaware that he could have brought in his own underwear or had it sent in to him. He complained that the underpants provided were sometimes stained yellow and had been roughly repaired. The prisoner Smith described the underwear as "maybe ripped but generally over-washed and needing replaced". McBride said that he got satisfactory, clean underwear everyday. The officer in charge of issuing clothing in C Hall was Alan Kennedy Dickson. He explained that the underwear was laundered 5 days a week and that two hundred new pairs were introduced every week. He estimated that underpants were used for only 14 days. If a prisoner returned soiled underwear, he would be given a clean pair. That did happen from time to time. The petitioner was apparently not aware of that. It is perhaps unfortunate that prisoners were not given a number of pieces of fresh underwear when admitted to the prison, which were suitably marked and used by them exclusively. However, in that state of the evidence, and bearing in mind the rather vague account of his complaint given by the petitioner, and in view of the fact that the facility did exist for prisoners to bring in and use their own underwear, I am unable to make a finding that the petitioner was compelled to wear soiled underwear.

PROPOSED SITE INSPECTION

[33]     
The respondents invited me to visit A Hall in Barlinnie Prison, which remains in substantially the same condition as C Hall was in at the relevant time. The sole purpose suggested for the visit was that it would give me some appreciation of scale, size, etc. When the motion was made in July 2003 A Hall housed convicted prisoners for whom the regime of activities was quite different from that at the relevant time in C Hall. It was not proposed that I should observe slopping out. The motion was opposed on the grounds that the locus, while similar in physical structure, was used differently and was within the control of the respondents who, it was to be hoped, had made improvements since 2001, and who could stage-manage the visit to some extent. Counsel for the respondents countered these objections by stating that I could speak freely to any prisoners there to check that I was viewing the situation as normal. Counsel for the petitioner responded that in adversarial proceedings it would not be appropriate for such private conversations to take place, and that the very suggestion emphasised the impropriety of the course proposed. I accepted the further submission made by counsel for the petitioner that such a visit would be appropriate only if it was necessary to enable me to understand the evidence in the case. I was entirely confident that I could adjudicate adequately on the evidence which I had heard without paying a visit to similar conditions. While I was not required to adjudicate on the point, it was drawn to my attention that there is doubt over the competency of such a visit after the evidence has commenced in the absence of consent. In that regard reference was made to the Stair Memorial Encyclopaedia Vol 10 para 618, I.D. Macphail Sheriff Court Practice Vol 1 para 16.93, Hattie v Leitch (1889) 16 R 1129 and Redpath v Central SMT Co 1947 SN 177.

MENTAL STATE

[34]     
Assessing how the conditions in which he was detained affected the petitioner mentally and physically has proved much more troublesome than determining the conditions themselves. Evidence on the question whether the petitioner suffered psychiatric illness was given by Dr Harry Kennedy, Consultant Forensic Psychiatrist at the Central Mental Hospital, Dundrum, Dublin, and visiting psychiatrist at Mountjoy and Clover Hill Prisons, who was previously Consultant and Clinical Director at Camlet Lodge Secure Unit, Enfield, and Honorary Senior Lecturer in Forensic Psychiatry at University College and the Royal Free Medical School, London, and Dr Kim Armand Fraser, Consultant Forensic Psychiatrist and Chief Physician to the Adult Clinical Psychiatry Service in Newcastle, North Tyneside and Northumberland Mental Health NHS Trust and Honorary Clinical Lecturer, instructed on behalf of the petitioner and the respondents respectively. They carried out their investigations in the first half of 2003, long after all the events that are relevant in the case. By then the petitioner was progressing through the prison system, and was interviewed by Dr Kennedy in January at HM Prison Shotts and by Dr Fraser in April at Friarton Hall, HM Prison Perth. Since neither witness could detect any sign or symptom of mental illness when he interviewed the petitioner, their views were entirely based on deduction from the circumstances about which they had been informed through various documents and by interviewing the petitioner.

[35]     
Dr Kennedy came to the conclusion that the petitioner described signs and symptoms of a moderately severe adjustment reaction suffered at the time of his detention in C Hall and persisting at least until the time of his transfer to Shotts. He considered that it was accompanied by a relapse of his eczema due to the combined effects of emotional disturbance (the adjustment reaction) and unsanitary conditions leading to infection. He also described the petitioner as having "suffered a substantial degree of distress and anxiety and ... exacerbation of his eczema". He attributed the adjustment reaction to the conditions of the petitioner's detention. The principal difficulty I have with that conclusion is that Dr Kennedy attributed the adjustment reaction to the conditions in which the petitioner was detained, without having regard to important facts about the circumstances of the petitioner's detention which I have already held to be a sufficient explanation for the state of stress which probably triggered the initial flare up of the eczema. It is significant that, when Dr Kennedy recorded how the petitioner came to be in C Hall at the relevant time, his record was confined to the petitioner being returned on 18 May 2001 because a complaint had been made to the police giving rise to a charge of attempting to pervert the course of justice in relation to the charge of attempted murder in respect of which he appeared on petition in April. No mention was made of his failure to attend for trial leading to the issue of an arrest warrant and his detention on that warrant also on 18 May. In forming the opinion that there was little uncertainty in the petitioner's life while on remand, because he knew that he was about to be sentenced for assault, robbery and abduction and was very confident of acquittal on the charge of attempted murder, Dr Kennedy did not take into account the petitioner's apparent unwillingness to face up to his fate on the former matter at that stage. He was probably unaware of it. On account of this omission alone, I am not prepared to accept Dr Kennedy's conclusion that, if the petitioner suffered an adjustment reaction, it was caused by the conditions of his detention in C Hall. Dr Kennedy may also have been influenced by the petitioner's exaggeration to him of the extent to which his cell mates defecated in the cell. He claimed that two of them did, and that one of them did so several times because he was a drug addict. He also took account, in preparing his report, of the petitioner's having claimed to have let down his family by being exposed to the disgusting regime of slopping out. When he checked his notes while giving evidence, he was able to confirm that the petitioner had indeed told him, as he had told the Court, that he felt he had let his mother and family and friends down because he was doing a long term sentence.

[36]     
Counsel were agreed that the only significant difference between the psychiatrists was the diagnosis. They were largely agreed on the symptoms. Faced with the opinion of Dr Fraser that the petitioner did not suffer mental illness, I could only make a positive finding that he did if I were to feel greater confidence in Dr Kennedy's opinion to that effect. Having regard to the fact that, following his investigation of the petitioner's mental state including the factual background, Dr Fraser proceeded on material which did not differ in any significant respect from that presented in evidence, and bearing in mind the various respects in which Dr Kennedy proceeded upon material which was not established in the course of the hearing, I do not feel sufficiently confident in his diagnosis that the petitioner suffered a moderately severe adjustment reaction to hold that proved. For an adjustment disorder to be established there must be states of subjective distress and emotional disturbance, usually interfering with social functioning and performance and arising in the period of adaptation to a significant life change or the consequences of a stressful life event. On balance I am, like Dr Fraser, unconvinced that the symptoms described by the petitioner gave any indication that his social functioning and performance were adversely effected by mental disorder. Although the petitioner felt angry, anxious, helpless, humiliated, low in mood and disgusted with himself and his situation at various times, the evidence did not indicate to me that his functioning as an individual was significantly impaired. He got on with the activities which he usually undertook in his cell. Any tension that arose between him and his cell mates did not boil over. The impression Dr Fraser formed, from interviewing the petitioner, of how he felt and acted during the relevant period, was broadly similar to the petitioner's account in court. Had he suffered a psychiatric disorder, it is unlikely that he would have been able to describe the improvement in his mental state on arrival at Shotts Prison as "instantaneous". One point that Dr Fraser considered particularly significant was the petitioner's belief that his confidence had been effected adversely and that he had ongoing difficulty in looking people in the eye. However, while that was an important factor in endeavouring to diagnose whether he did suffer mental illness, Dr Fraser considered that such vague, even if genuine, indications of his feelings did not amount to psychiatric disorder. Dr Fraser also considered that the absence of any reference in prison records, including the records of the hospital wing when he was moved there, to any signs or symptoms of mental illness was a further indicator that the petitioner did not suffer psychiatric disorder while in C Hall. It should also be noted that a Clinical Psychologist, Professor David Cooke of Glasgow Caledonian University, to whose evidence I shall refer again later, carried out a study into the empirical literature related to the impact of prison overcrowding on mental disorder. He concluded that there was no compelling empirical evidence that overcrowding in prison leads to mental disorder. He acknowledged that the absence of evidence of an effect is not the same as the absence of an effect. However, subject to that qualification, his conclusion was supportive of Dr Fraser's opinion. He expressed his conclusions in this way:

"1. I could find no compelling empirical evidence that overcrowding in prison leads to mental disorder.

    1. There are many confounding factors that make it impossible from the data available to establish overcrowding as a cause of mental disorder in prisons.
    2. These factors include lack of proper measurement of mental disorder and a difficulty of untangling the effects of recency of arrival within prison and type of accommodation.
    3. The absence of evidence for an effect is not the same as an absence of an effect, however, the necessary empirical studies are not available."
[37]     
While there was disagreement between them about the diagnosis of mental illness, both psychiatrists were agreed that the conditions in which the petitioner was detained were bound to have had some impact on his mental state. Counsel for the respondents conceded that that was the case. What that impact probably was is best dealt with by reference to the evidence of Dr Kennedy. He has a wide experience of a variety of custody situations. He has given expert psychiatric evidence in cases concerning conditions in various prisons. He was eminently qualified to express an opinion on whether certain of the conditions in C Hall were likely to have at least some impact on the mental state of the petitioner. He was cautious in his approach to this issue, since distinguishing between the impact of incarceration itself and the poor conditions surrounding it is difficult. In relation to slopping out, Dr Kennedy expressed the opinion that the regime had the inevitable effect of humiliating and degrading prisoners such as the petitioner. This arose not merely from the unintended effects of the historical design of the building, but also from the organisation whereby what would appear to be adequate numbers of staff insisted on what seemed unduly brief and hurried periods for slopping out and longer unnecessary periods when prisoners were locked in their cells. He found the environment to be oppressive and thus likely to be harmful to the mental health of any person because the cells were small, poorly ventilated, lacking in adequate daylight and dirty, the ablutions areas and facilities were inadequate and the regime was so ordered that the use of the ablutions area was rushed and generated an increased stench. Unlocking was for rushed dashes to sluice out pots and various activities. He thought that the regime was harmful to mental health because it impressed on the inmate that he was treated as someone who was not esteemed by the institution or by society at large - it denigrated the person as an individual. It is my opinion that, as a result, the petitioner suffered psychological symptoms which anyone might experience as a reaction to the conditions in which he was detained - shame, disgust, loss of self esteem, low mood, anxiety, tension and anger. Both witnesses agreed that the conditions constituted a stressful environment.

[38]     
The petitioner led evidence from the environmental psychologist to whom I have already referred, Professor David Canter of Liverpool University. His principal interest is a new discipline developed by him, investigative psychology, on which he has concentrated from the late 80's, while still keeping an active interest in environmental psychology. Professor Canter has experience of conditions in prisons and in remand centres and has provided advice to the prison service in England and Wales. Environmental psychology is the study of how people interact with their surroundings, how they cope with the demands that their surroundings make upon them and what the psychological consequences, in the sense of mental distress, stress, feelings of self-worth and worthwhile individuality, are. The environmental psychologist looks at the "place" inhabited by his subject, that is the physical dimensions and shape of, and the function that must be carried out in, the units of space occupied by the subject. To the extent that the subject cannot find within the "place" appropriate space to carry out necessary activities, the place is "crowded". Crowding, therefore, occurs where the circumstances within the place undermine the control that the subject perceives he ought to have over his own activities. In both his report and his evidence Professor Canter considered what the likely impact of the conditions in C Hall would be on a person in the position of the petitioner affected as he was by atopic eczema. A question arose as to whether he might have been influenced in his views by a conversation which he had had with the petitioner after the petitioner had given evidence but before he had read the transcript of that evidence. His approach was summed up by an answer which counsel for the respondents appeared to accept as an accurate description of the appropriate approach. In that response Professor Canter agreed with counsel that what his report did was to look at a cell and a regime which persisted at a given time to try to express a view whether that cell in these conditions gave rise to a risk of psychological harm and try to assess the likely extent of that psychological harm. He explained that he had not tried to carry out a thorough psychological assessment of the petitioner to the full extent of climbing into the petitioner's head and giving an account of exactly what he was experiencing. However, he did acknowledge that, having worked out the likely impact on people in general, he would then try to give some particular weight to whatever he could find out about the petitioner that would add an extra detail to the analysis that he was carrying out. He indicated that, in speaking to the petitioner, he did not obtain any information that was significantly different from information in the transcript which he subsequently read. No doubt that is so. Nevertheless, in looking at particular aspects personal to the petitioner, he proceeded on information that was not part of the evidence and on inferences not supported by the evidence. For example he reported:

"I have been told that Mr Napier had only the most limited possibility of finding ways to cope with being incarcerated. Instead, whether he was slopping out, or in his cell with the faecal odour of his cell mate, or trying to get access to medical help, every minute of his waking life reminded him that he was at the mercy of the authorities and was not a free human being."

That was not the evidence. He also reported that, from his meeting with Mr Napier and his description of his approach to dealing with prison life, it would seem that he did not have the self-efficacy to help to counteract the Barlinnie experience. Again that is not consistent with the evidence. In relation to one matter he speculated. While the petitioner was clearly distressed by his appearance, there was no basis for Professor Canter to conclude that his adverse feelings about himself were "doubtless", aggravated by the fact that his unsightly appearance, in close proximity to his cell co-occupant as well as to other prisoners during the out-of-cell times, was treated by them with disgust and probably anxiety as to whether his condition was infectious. No prisoner or member of staff gave evidence of being aware of the petitioner or his eczema. As a result I have attached no weight to any conclusions Professor Canter appeared to draw about the actual impact on the petitioner. That does not, however, undermine the conclusions he drew about the features of the conditions in C Hall that were likely to have an adverse impact on the mental state of a person such as the petitioner. His evidence on that was unchallenged. He expressed his opinion thus:

"1 Within the cell, the lack of opportunity to create appropriate 'places' for activities, most notably the lack of a distinct place of excretion and associated washing facilities.

2 The sharing of the cell, causing the lack of possibility for creating a "personal space" and distinct area or "territory" for his own activities, most notably in inclusion (sic) primitive toilet facilities within the cell.

3 The pressure of overcrowding and lack of enough facilities, on the landing and in the block, on the opportunities there might otherwise have been for hygiene, recreation and 'psychological release'.

4 The arbitrariness yet excessive control of the regime over the minutiae of daily activities.

5 The impact of Mr Napier's eczema on his ability to make use of coping strategies that may have alleviated the brutalising quality of his incarceration.

6 The uncertainties associated with being on remand.

In my opinion, these conditions interact to create circumstances that in total are more debilitating and dehumanising than could reasonably be expected for imprisonment."

He went on to further conclude:

"Therefore although each of the major debilitating components of the conditions which Mr Napier suffered;

a) The small shared cell with its conflicting functions and the consequent lack of possibility for creating appropriate places within it,

b) The institutional harshness and lack of any opportunities to develop effective coping mechanisms for 'escaping' from the ever-present experience of incarceration, and,

c) His ability to deal with prison life and medical vulnerabilities that reduced further his ability to create a human context for himself,

in and of themselves might not be expected to be dehumanising and demeaning to a very large degree, taken together as the multiplicity of stresses they create circumstances in which it would, in my opinion, be difficult for Mr Napier to hold onto any sense of self-worth or value as a human being."

In my opinion, that view is consistent with the impact that the conditions did in fact have upon the petitioner. He did manage to get through his period in C Hall without suffering mental illness, but was constantly made to feel small, inadequate and worthless by the combination of conditions in which he was detained, his perception of the threat these conditions posed to his vulnerable skin, and the stress which that combination of factors caused.

[39]     
The respondents sought to counter the evidence of Professor Canter by leading evidence from David John Cooke, Professor of Forensic Psychology at Glasgow Caledonian University and Consultant Clinical Psychologist. On 16 September they first sought to lodge a report by Professor Cooke, which became available on 5 September and which was in two parts. No objection was taken to the lodging of the second part which was a review of the empirical literature related to the impact of prison overcrowding on mental disorder to which I have already referred. Counsel for the respondents objected to the first part being lodged at that stage, because it related to a clinical examination of the petitioner's mental health on which the evidence had been heard as a distinct chapter when Drs Kennedy and Fraser gave evidence, and also because it proceeded in part on information obtained by Professor Cooke from the petitioner which did not form part of the evidence in the case. Counsel submitted that, if the report were lodged, it would be necessary to recall the petitioner as well as Dr Kennedy, and it would also be necessary for the petitioner to engage a clinical psychologist to report and thereafter give evidence. When the matter was first considered by me on 16 September, the respondents were concerned to respond to evidence which they anticipated that Professor Markus would give in relation to issues which fell within the province of a psychiatrist and that had, in the submission of counsel, "moved the goal posts". When the matter was further considered immediately before Professor Cooke gave evidence on 24 September, the respondents were principally concerned to counter evidence that had been given by Professor Canter. Counsel for the respondents conceded that Professor Cooke had obtained information from the petitioner which did not form part of the evidence in the case. He did not propose to recall the petitioner. However, it was likely that counsel for the petitioner would require to recall him and other witnesses. Since I did not consider it appropriate for an opinion to be expressed by an expert on a factual basis which was inconsistent with unchallenged evidence before the court, I refused to allow the report to be admitted. Had I admitted the report, there was every prospect that those acting for the petitioner would have felt obliged to recall him and to instruct further psychological evidence. It was impossible to anticipate what other witnesses might be required to be recalled. The respondents knew before the hearing began that Professors Markus and Canter were potential witnesses for the petitioner. The petition had been in court for over two years when the motion was made. As it was, I left out of account the views which Professor Markus expressed that related to matters of psychology in which he did not claim current expertise, and had no regard to any conclusions Professor Canter appeared to draw about the impact that the conditions did in fact have upon the petitioner. Counsel for the respondents invited Professor Cooke to consider whether he could express views on the petitioner's psychological state based on the evidence before the court and leaving out of account additional or different information obtained at interview with him on 16 July 2003. Professor Cooke said that he would have great difficulty doing so. Counsel pressed him no further. Neither his report nor his evidence challenged the evidence of Professor Canter about the likely impact of his conditions on the petitioner. Professors Cooke and Canter work in different disciplines. As Professor Canter put it:

"Clinical psychologists work broadly in a medical context and they increasingly, over the years, have been carrying out activities that overlap with what a psychiatrist will do. Clinical psychologists are concerned with mental illness and pathology, and indeed will draw upon psychiatric classification systems such as the diagnostic manual of the American Psychiatric Association, DSM, whereas most environmental psychologists would not feel themselves ... competent to comment on those processes of mental abnormality .. the debilitating effects which an environmental psychologist is interested in is not so much mental illness or psychopathology but rather mental distress, stress and other psychological aspects of experience, such as feelings of self-worth and worthwhile individuality."

[40]     
The evidence of both psychiatrists, Drs Kennedy and Fraser, and the evidence of the environmental psychologist, Professor Canter, painted a clear picture of the petitioner enduring a stressful environment, and the evidence of both psychiatrists showed clearly that the stress experienced by the petitioner was significant and gave rise to a number of psychological symptoms. Against that background I turn to consider the cause of the outbreak of eczema. That is a difficult and fairly complex issue.

THE PETITIONER'S ECZEMA

[41]     
It was the undisputed evidence of the petitioner that he suffered the first symptoms of an outbreak of eczema on the day he arrived in C Hall, which was the day after he was admitted to the prison, initially into A Hall, through which all newly remanded prisoners passed. He was admitted on Friday 18 May. At that time his eczema was inactive. The outbreak started on Saturday. By Sunday it was well established, with blisters and yellow pus over a wide area of his face. On Tuesday a prison doctor noted that the outbreak was infected.

[42]     
The petitioner's atopic eczema has caused him to attend hospital skin clinics from the age of 2 months. When he was 3 years old, he was admitted to Monklands Hospital because of eczema. He also suffers from asthma, for which he has also attended clinics throughout his life. No particular issue arises in relation to that condition. Until the age of 14 or 15, the petitioner's skin would flare up from time to time and he would again have to attend hospital. The condition improved in his late teens, but flared up again when he was 20. From March 2000 a number of flare ups of eczema occurred.

[43]     
The outbreak which the petitioner suffered in C Hall was a serious one. The petitioner quickly made the link in his own mind between the outbreak and the conditions in which he was being held. His solicitors sent a fax to the Governor of Barlinnie on 22 May, stating that the petitioner contended that he was being detained in circumstances which were inhuman and degrading in contravention of Article 3 of the Convention and that he asked to be treated in a Convention compatible manner by being transferred to conditions which were compatible with his Article 3 rights. That request was refused. The solicitors were notified of that decision in a response from Mr Lorrain-Smith dated 24 May.

[44]     
His solicitors took urgent steps to arrange for him to be examined by Dr Michael O'Keefe, who worked in general practice for 25 years until April 2001. Between 1981 and 2001 he was also engaged as a forensic medical examiner (police surgeon) by Strathclyde Police. Since April 2001 he has worked as an independent forensic medical examiner, providing services to Strathclyde Police and to members of the public, such as the petitioner. As a general practitioner he had wide experience in treating skin complaints. He examined the petitioner on 24 May. The petitioner complained of a constant stinging pain in his face and eyes, difficulty opening his mouth, and pain and discomfort when eating on account of an acutely ulcerated top lip and cracks and fissures at the angle of his mouth. On examination Dr O'Keefe found that the petitioner had an extremely obvious eczematous eruption involving the whole of his face, most noticeable on his top lip, his forehead, his eyes and his nose. The angles of his mouth appeared cracked and fissured. He had noticeable and significant inflammation and fissuring of the skin behind his ears. He had scattered inflamed lesions on his scalp and less obvious lesions on his neck, back and upper anterior chest. He had two localised slightly septic lesions on his right lumber area. Both elbows, forearms and hands showed evidence of recent inflammation with healing lesions on the dorsal or upper surfaces of his hands. His skin was generally flaky and scaly. The most significant lesions were those on the face, particularly his mouth, eyes and nose, which showed evidence of infection, being obviously inflamed, red and swollen. He concluded that the outbreak was severe but not severe enough to require emergency admission to hospital. He advised that his condition should be monitored. When the petitioner saw Dr O'Keefe, he had already been prescribed, and was taking, antibiotic tablets. He also had Betnovate RD cream (a steroid) and Diprobase (a moisturiser). Although Betnovate RD may be used sparingly on the face, it was the petitioner's understanding that it was not desirable to use it there because of the effect the steroid content might have on the skin of the face, and that its use should be confined to other parts of the body. Instead, he normally used Fucidin, which contains an antibiotic and which had been prescribed, but which he did not receive at that stage. In spite of that, on his own account, the outbreak had more or less cleared up by the end of that week. Regrettably his skin flared up again about 4 June. A doctor saw him on 6 and 8 June and noted the condition on the latter occasion as "infected eczema". Fucibet cream was prescribed for the body, along with Fucidin H. Thereafter his condition began to improve. On 20 June it was recorded by the doctor as "under control". On 28 June, when the petitioner was admitted to the Residential Healthcare Unit in Barlinnie, his condition was described in these terms: "Eczema is not active at the moment but the skin is dry". By that time he also had Diprobath, a preparation for use when washing, which he normally used at home.

[45]     
While Dr O'Keefe's experience was such that he could express an opinion on the cause of the outbreak of infected eczema, the principal evidence on that came from Dr Angela Forsyth, Consultant Dermatologist and Honorary Clinical Senior Lecturer in Dermatology at the University of Glasgow, a renowned expert on the subject, and Dr Linda Donaldson, a Specialist Staff Grade Dermatologist at Monklands General Hospital, who has 15 years clinical experience of dermatology. The respondents also presented a report by Dr R.D. Aldridge. Since I have no information about his experience, I do not consider that it is appropriate to take account of it. While Dr Forsyth has a broader experience and knowledge of dermatology in general than Dr Donaldson, there was no clear basis in the evidence for concluding that Dr Forsyth had significantly more clinical experience of examining and treating patients with eczema than Dr Donaldson, and Dr Donaldson had the advantage of having seen and treated the petitioner in the period between March 2000 and May 2001. She described the condition of the petitioner's eczema in October 2000 as "widespread" and in January 2001 as "severe". These serious outbreaks had occurred in the absence of the conditions of detention of C Hall. There was some debate about whether the one in January was as severe as the outbreak in Barlinnie. The issue is not important, since the significance of the January outbreak was limited by the fact that it occurred in exceptional circumstances. The petitioner's treatment had been suspended, owing to a misunderstanding about whether he was to take part in certain clinical trials. Not surprisingly he suffered a serious flare-up. His eczema is generally kept under control by the regular application of ointments to the vulnerable parts of the body, the addition of lotion to bathing water once a day and the daily application of moisturiser to the skin in general. No particular reason for the flare ups in October 2000 and January 2001 was established. That is quite common.

[46]     
It was the opinion of Drs Forsyth, Donaldson and O'Keefe that stress is a major cause of reactivation of eczema in an atopic person and that atopic eczema can also flare intermittently for no obvious reason. Drs Forsyth and Donaldson agreed that the very detention of a person to await sentence for a very serious crime was precisely the sort of stressful event that could cause an outbreak. They were also agreed that, when eczema is going through an unstable period, the skin can flare much more readily than when in a reasonably stable phase. Dr Donaldson concluded that the exacerbation of eczema during the petitioner's stay at Barlinnie could have been due to any combination of stress caused by being imprisoned, anxiety over the impending trial, the cramped and unhygienic conditions within the cell, and could indeed be a flare up of unstable eczema with no particular cause. She thought it extremely likely that the cause was multifactorial. In saying so, however, she was simply indicating the possibilities. She did not indicate a basis for concluding that any one or more of these causes was actually involved in this instance. Dr Forsyth's opinion was that the severe exacerbation of eczema suffered by the petitioner from 20 May to June 2001 was directly the result of stress caused by his conditions in prison at that time. Dr O'Keefe considered that it was entirely likely that the acute outbreak of infected eczema he saw was directly linked to the petitioner's "current situation" by which he meant his conditions of detention.

[47]     
In my opinion, the evidence as a whole does not justify the conclusion that it was stress caused by the conditions of the petitioner's detention which initially triggered the flare up or exacerbation of his eczema. There was no evidence about the specific conditions in which he was detained in A Hall. The evidence was simply to the general effect that the conditions there were similar to those in C Hall. There was no evidence, for example, about what the actual toilet arrangements were during the period that he was there, or whether he had to share a cell. There was no evidence that he had found his initial slopping out experience there particularly disturbing. He was not there long enough to be affected by the regime within A Hall. The outbreak started before there was any opportunity for the petitioner to settle into and become affected by the routine of C Hall. During previous periods of detention in similar conditions in Barlinnie he had not suffered such an outbreak of eczema. He first shred a cell in C Hall on 21 May, by which time the outbreak was well-established. It must be borne in mind that on the previous day he had suffered unexpected misfortune. Having failed to appear for trial at the High Court in Glasgow on 9 May, he was bound to have been aware of the existence of a warrant for his arrest and the possibility of detention at any time. However, he could not anticipate when that would be. When he arrived in Barlinnie, he was being forced to face up to the consequences of conviction on a charge more serious than anything that had confronted him in the past. His failure to attend his trial indicated that he had not reconciled himself to the fate that awaited him, even if he did plan to plead guilty. And whatever else might have contributed to the outbreak on 19 May, there is no basis for concluding that prison overcrowding, or any of the abhorrent

elements of slopping out or the impoverished regime of C Hall did. Indeed the stress associated with suddenly being compelled against his will to face up to the charge he had tried to avoid at that stage, on the evidence of both Dr Forsyth and Dr Donaldson, a sufficient explanation for the outbreak. I agree with the opinion of Dr Donaldson that, where he had been in detention for only 24 hours, it is very unlikely that the outbreak was caused by the conditions of his detention.

[48]     
So far as the petitioner's ongoing detention is concerned, the position is different. There is no complaint that the treatment administered to the petitioner was inappropriate. It is, however, contended that deficiencies in the regime resulted in treatment not being administered as promptly as it ought to have been. When the petitioner drew the attention of a prison officer to his condition on 20 May, he was advised to wait until the following day for a medical check. He attended the nurse the following day and saw the doctor the day after that. As the result of the treatment prescribed the initial flare-up settled. There was no evidence to suggest that the petitioner was used to significantly prompter treatment than that. Thereafter there was delay in supplying Fucidin H, which was not supplied until 18 June. However, what is particularly significant is that the petitioner was very anxious about the impact of the conditions in which he was being held. Dr O'Keefe formed the impression that he felt extremely aggrieved at his living conditions because he clearly attributed the flare-up directly to the living conditions. There could be no clearer confirmation of that than his prompt instruction of his solicitors to endeavour to secure his transfer to better conditions. He regarded the outbreak as the worst he had ever suffered. He told Dr O'Keefe that he was "totally disgusted" by his unhygienic surroundings. I have already made detailed findings about the stressful nature of the environment and the effect which the conditions of his detention had on his mental state. The petitioner described how, confined most of the day in a state of boredom, he found it impossible to resist scratching the affected areas of his skin. Dr Forsyth explained that itching is a constant symptom of eczema, and that the itching and inflammation associated with the exacerbation would interfere with the petitioner's sleep and put more stress on him. The petitioner perceived the damage caused by scratching as increasing the risk of infection. The arrangements for slopping out did not enable him to maintain the high level of personal hygiene to which he was used at home. He normally showered twice a day, using Diprobath once, and regularly applied Diprobase moisturiser. Even when these became available to him in C Hall, he did not shower. Although the accounts of his showering noted by Drs Forsyth and Donaldson differed from the evidence, I accept what the petitioner said in court about showering. As I have already stated, he appeared to me to give an honest and fairly, though not entirely, accurate account of the hall conditions. In relation to showering, he said that, when the outbreak occurred, he found the stinging sensation of water on his skin intolerable and had not tried to shower after that. He also said that he would not have been able to get a shower regularly in any event because of the constant queues there. That is consistent with the other evidence. He doubted whether a request to have a shower in the afternoon would have been granted in view of the staffing position and the general inconsistency in responding to buzzer requests. There is no reason to doubt the accuracy of that view. It was impossible to wash with the care that his skin required at a sink during slopping out. He could only splash water over himself. The water he could take to the cell was inadequate and became contaminated as soon as it was used. His attempt to secure his removal from the hall to better conditions had failed. These factors, considered in the light of the significance of stress as the cause of outbreaks of atopic eczema, lead me to the conclusion that his continued detention in C Hall, after he had sought removal therefrom, caused stress in the petitioner which in turn probably caused the resurgence and persistence of the outbreak of eczema following his first week in custody. That is consistent with the opinion of Dr Forsyth and not ruled out, at least as a possibility, by Dr Donaldson. Counsel for the respondent pointed to regular requests by the petitioner for ointment, for example Fucidin H, after he moved to Shotts, when taken along with the history of outbreaks since March 2000, as indicating that the outbreak in Barlinnie was simply one episode in a lengthy active period of the eczema, and submitted that, since the outbreaks had occurred in a variety of circumstances, the evidence did not support a conclusion that linked the petitioner's eczema with the conditions of his detention. In my opinion, that submission grossly overstated the significance of the factors referred to. The evidence of on-going provision and use of ointment in Shotts gave no indication of the extent to which the petitioner was troubled there by his eczema. In the period between March 2000 and May 2001 there were two other serious outbreaks. The only one that was considered as rivalling the Barlinnie outbreak in gravity was that in January 2001 when all treatment had been suspended. In any event, I consider that the Barlinnie outbreak was just as serious as, if not more serious than, the January one. While Dr Donaldson had had the advantage over the other doctors of having seen that outbreak, the petitioner shared that advantage and was in no doubt that the Barlinnie one was more serious. He alone had seen and suffered all outbreaks. I consider it appropriate to give significant weight to his view, since he displayed a good knowledge of the condition and how to treat it. Having reviewed his records, Dr Forsyth accepted his view. On the other hand, my confidence in Dr Donaldson was somewhat undermined by her fairly dogmatic opinion that Dr O'Keefe's description of the condition he found was likely to be an exaggerated account, since general practitioners normally exaggerated the gravity of eczema. I was impressed by the restrained way in which Dr O'Keefe gave his evidence, and formed the impression that he had carried out a careful examination of the petitioner and had recorded his findings accurately. They were supported by the petitioner's own account of his condition. I am satisfied that from the time the petitioner instructed his solicitor to seek his removal to Convention compliant conditions his predominant concern was the impact that these conditions were having on his skin. There was no convincing evidence that, following upon the refusal to remove him from C Hall, any other issue in his life was imposing a comparable degree of stress upon him. There is no basis for inferring that, after spending a week in custody, the petitioner was experiencing stress from the prospect of the inevitable lengthy sentence awaiting him that could rival the stress imposed on him by the conditions of his detention. .

FRAMEWORK OF LEGAL ANALYSIS

[49]     
The petitioner's principal case is that, by reason of being detained in the conditions which prevailed during his period of remand in C Hall, he was subjected to treatment which infringed Article 3. That Article is in the simplest of terms and provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In the end the case advanced by counsel for the petitioner was that the petitioner was subjected to degrading treatment. Whether the petitioner was detained in conditions which infringed Article 3 of the Convention is largely a question of fact. Parties have referred to a body of jurisprudence, principally of the European Court of Human Rights, both definitive of what is necessary to, and illustrative of what has been shown to, amount to an infringement of Article 3. The principal question for me is whether the petitioner was, as a matter of fact, detained in conditions which were such as to constitute, as a matter of law, an infringement of Article 3. In the event that such an infringement has not been established, there is a similar question in relation to infringement of Article 8. That again is largely a question of fact. There is no doubt that, if either Convention right has been infringed, that infringement was the responsibility of a public authority and Section 6 of the Human Rights Act 1998 is engaged. It provides that it is unlawful for any public authority to act in a way which is incompatible with a Convention Right and defines "act" as including failing to act. There is then the controversial question whether Section 57(2) of the Scotland Act 1998 has also been engaged. The petitioner seeks to hold the Scottish Ministers directly responsible for any infringement. Section 57(2) provides:

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Conventions Rights or with Community Law."

Section 44 defines the Scottish Executive as consisting of the first minister, his ministers and the law officers, and provides further for the members of the Scottish Executive to be referred to collectively as "the Scottish Ministers", the respondents to this petition. Two questions arise. The first is whether what occurred to the petitioner was the result of an "act". The respondents have submitted that the essence of the case made for the petitioner is of a failure to act and that does not fall within Section 57(2). The second question is whether what was done, either as an act or failure to act, was committed by one or more members of the Scottish Executive. The respondents accept that, in respect of any finding under the Human Rights Act, it is appropriate that the finding is made against them, since they accept responsibility for the Scottish Prison Service as a public authority. However, they contest the propriety of any finding under Section 57(2) of the Scotland Act, unless both questions are answered against their submissions. If any of these issues is answered in favour of the petitioner, the question of remedy arises. The petitioner also makes a case against the respondents for damages at common law for breach of their duty to take reasonable care for his health and safety.

OTHER INTERNATIONAL INSTRUMENTS AND STANDARDS

[50]     
In addressing the question whether Article 3 was infringed, counsel for the petitioner prayed in aid the terms of a number of international instruments which, they submitted, were accepted in practice in the United Kingdom as setting standards which the Scottish Prison Service considered should be achieved. Reference to these instruments did not, in my opinion, advance matters. Article 3 of the Convention is in clear and simple terms. The other international instruments referred to simply state the same standard, sometimes in slightly different language. Apart from founding on a few specific provisions to which I have referred earlier, all that counsel for the respondents sought to draw from these instruments was the proposition that, allowing for the need to detain prisoners securely, all prisoners should be treated in a humane manner and with respect for their dignity as human beings. Counsel for the petitioner stressed that that general principle applied equally to all human beings, wherever their lives were lived. It is obviously true to say that the principle applies to everyone, but it does not follow that how the principle applies should always be the same in practice. At one point it was submitted that prisoners should be treated like people in any other institution such as a hospital. What is humane treatment for someone seriously ill in hospital will generally be quite different from what may be regarded as humane treatment of a fit young man facing an accusation of serious violence, who, having failed to attend court for trial, must be detained in secure conditions along with many others in a similar situation. The instruments referred to were the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights (1977) (Cmnd.6702), the United Nations Standard Minimum Rules for the Treatment of Prisoners, the United Nations Body of Principles for the Protection of All Persons Under Any Form of Protection or Imprisonment, the European Prison Rules, Recommendation No.R(99)22 adopted by the Committee of Ministers of the Council of Europe Concerning Prison Overcrowding and Prison Population Inflation, and certain Council of Europe Economic and Social Council Resolutions. What these instruments do usefully underline is the importance of not subjecting the person who is compulsorily detained to ill treatment in any form. The punishment which he is expected to undergo is deprivation of his liberty. A prisoner is not deprived of his liberty in order to be subjected to punishment in the form of ill treatment while detained. Having been deprived of his liberty, he is entitled to be treated in a humane way and with due respect for his dignity as a human being. The proper approach was ideally summarised in terms relating to inhuman treatment, but which are equally applicable to degrading treatment, by Lord Cooke of Thorndon in an appeal before the Judicial Committee of the Privy Council in relation to the Constitution of the Bahamas, Higgs v Minister of National Security [2000] 2 AC 228 at 260-261:

"Self-evidently every human being has a natural right not to be subjected to inhuman treatment. A right inherent in the concept of civilisation, it is recognised rather than created by international human rights instruments such as the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights (1977) (Cmnd.6702), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd.8969). In the Constitution of the Bahamas it is to be found in Article 17(1). A duty of governments and courts in every civilised state must be to exercise vigilance to guard against violation of this fundamental right. Whenever violation is in issue a court will not fulfil its function without a careful examination of the facts of each individual case and a global assessment of the treatment in question. Commonly decisions in this field are findings of fact and degree, not expositions of law. If more than the assessment is open, the choice made is not one of law or legal principle but one of evaluation. Although it may properly have some influence on a later court faced with somewhat similar facts and anxious to achieve consistency of results, it cannot be a binding precedent. To prescribe to a contrary doctrine of precedent would be to insist on 'the austerity of tabulated legalism.' If I venture to state these considerations dogmatically, it is only because they seem dictated by the very idea of civilisation."

EXPERIENCED STUDENTS AND EXAMINERS OF PRISON CONDITIONS

[51]      The respondents accept, and have accepted for some time, that to subject any prisoner to a slopping out regime is undignified. Statements to that effect have been made on a number of occasions. It is clear beyond doubt that, by imposing the regime of slopping out upon prisoners, the respondents failed to accord respect to their dignity. Her Majesty's then Chief Inspector of Prisons for Scotland was both prior to, and during, 2001 highly critical of the continued existence of the practice of slopping out in the prisons of this country in the late twentieth and early twenty-first centuries. Unlike the role of the Chief Inspector, however, mine is confined to the impact of prison conditions on one particular prisoner. It is not my task to carry out a public inquiry into prison conditions in general and slopping out in particular. On the other hand, what those like the Chief Inspector, given responsibility for investigating these conditions, thought of their impact is relevant to the determination whether the treatment of the petitioner amounted to a breach of Article 3 of the Convention. Counsel for the petitioner characterised their views as "informed expert opinion" about conditions similar to those in which the petitioner was detained. Each of the witnesses who might be regarded as falling into the category of informed expert was careful to stress that, insofar as he was asked to express an opinion on conditions and might use the language of the Convention, he did not mean to suggest that he did so in the context of any legally recognised definitions of expressions used in Article 3.

[52]     
Although Clive Fairweather was not led as an expert witness, I regarded him as such since, in his role as HM Chief Inspector of Prisons of Scotland from 1994 until 2002, he was required to make an objective, independent assessment of prison conditions insofar as they effected both prisoners and staff and to report accordingly. It was his job to form a view on conditions as he saw them. He made the point that he had never used the phrase "inhuman" in any of his reports in relation to conditions in a Scottish prison. However, he had regularly used the word "degrading" in relation to prisons, including Barlinnie, particularly where there was slopping out. He had also described that practice as "demeaning", because that was how he found it to be, not only for prisoners, but also for staff. He had frequently referred in his reports to the conditions in C Hall as being "degrading". His concern about these conditions was neatly encapsulated in the title of his thematic report published in late 1999, "Punishment First, Verdict Later? - a Review of Conditions for Remand Prisoners in Scotland at the End of the 20th Century" - a reflection of his view that prisoners on remand in some institutions, including Barlinnie, were being subjected to a form of punishment by being held in particularly poor conditions. His last inspection of C Hall prior to the petitioner's detention there was in November 2000, when he said that conditions "remain impoverished compared with elsewhere in the Scottish Prison Service especially the amount of time out of cell". He also described the conditions as "squalid". Between 1999 and the petitioner's detention a measure of refurbishment was carried out in the recreation room and in each of the cells in C Hall. That included the provision of new bunk beds and furniture and the installation of privacy screens. The system for issuing essential toilet and personal hygiene equipment to prisoners was improved. Some kitchen work for about 20 prisoners was introduced. None of these improvements addressed the triple vices in a significant way.

[53]     
Mark Kelly is Head of Unit in the Secretariat of the Committee for the Prevention of Torture established under and in terms of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (as amended), which was ratified by the United Kingdom on 24 June 1988 and entered into effect on 1 February 1989. Since 1991 he has held various appointments with the Committee. As Head of Unit, he was and is responsible for organising visits by delegates to the prisons of member states of the Council of Europe. His qualifications are in penology and criminology, including an M.Phil. from the University of Cambridge. His evidence in chief was presented in an affidavit. He was cross-examined and re-examined. He explained the purpose and working methods of the Committee and views which they had expressed that were relevant to this case. The practice was for delegations from the Committee, comprising independent and impartial experts from a number of member states, to visit institutions in a member state, submit a draft report to the Government of that state, take account of comments (if any) made by the Government and finalise the report which was normally published. He explained that, when the Committee described prison conditions as "inhuman" or "degrading", they did not mean to declare that the conditions were incompatible with Article 3. Their views should be considered rather as advice to Governments that the conditions observed might infringe Article 3 of the European Convention on Human Rights. The Committee was established in terms of the European Convention for the Prevention of Torture, etc., in order to strengthen the protection of persons deprived of their liberty against the evils of torture and inhuman or degrading treatment or punishment as referred to in Article 3 of the Human Rights Convention. In carrying out its functions, the Committee has regard not only to the Human Rights Convention but also to other relevant human rights instruments and the decisions of the European Court of Human Rights. The authorities cited to me (referred to later) show that that Court has regard on occasions to reports of the Committee in determining whether Article 3 has been infringed.

[54]     
It was plain from Mr Kelly's evidence, and from the study by Morgan and Ellis in "Combating Torture in Europe", to which he referred, that, since its inception, the Committee has been concerned about the triple vices of overcrowding, inadequate sanitary arrangements and poor regime activities. In its second Annual General Report (1991), at para.46, it stated:

"Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely effected if it is required to cater for more prisoners that it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from the physical stand point."

In 1994 the Committee visited Barlinnie and inspected C Hall, in relation to which they said:

"343. 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 or degrading treatment.

344. ...

345. The cells were not equipped with integral sanitation. Access to a lavatory was usually possible during the day; prisoners said that most - albeit not all - prison officers would accede to a request to be released from the cell for this purpose."

The delegation went on to describe the chamber pots as small and inconvenient to use. These were plainly different from the new chamber pots in use in 1991. Faeces were packaged and removed from the cell via the window. The delegation were concerned that prisoners might remain in their cells up to 23 hours per day, and that most prisoners were held two to a cell which was of an acceptable size for one person but represented cramped accommodation for two. The aspect of inadequate lavatory facilities that concerned them most was the requirement to defecate in the presence of another. They considered the length of the period of detention could be relevant to the question whether the conditions of detention should be viewed as degrading. The delegation reported that they had been informed by the Scottish Prison Service that it should be possible to introduce integral sanitation in all prison cells by 1999. The Committee recommended that the provision of integral sanitation should be accorded a very high priority. They also recommended that prison officers should be given clear instructions that a request made by a prisoner during the day to be released from his cell for the purpose of using a lavatory should be granted, unless significant security considerations dictated otherwise, and that appropriate steps should be taken to improve the regime activities with the objective of ensuring that prisoners spent 8 hours or more per day outside their cells engaged in purposeful activity of a varied nature. While it is likely that the fabric and furnishings of the cells in C Hall were in worse condition in 1994 than they were in 2001, and while a prisoner urinating or defecating was exposed to the full view of cell mate and had a chamber pot of poor quality, the basic elements of the triple vices which prevailed in 1994 remained in place in 2001. Prior to that report in 1994, the Committee had twice visited prisons in England and Wales which were comparable to Barlinnie and had expressed similar views about these three elements of prison conditions.

[55]     
Dr Andrew Gerard Coyle, who is Director of the International Centre for Prison Studies at the School of Law, Kings College, University of London, and who worked from 1973 until 1991 in the Scottish Prison Service, including periods as Governor successively of Greenock, Peterhead and Shotts prisons, used similar language. He referred to a report by the Committee following a visit in 1990 to inter alia Brixton Prison, of which he became Governor in 1991, in which they described the regime of slopping out there as "degrading". Barlinnie and Brixton were very similar establishments at that time. The Committee put the matter thus:

"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 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(s) who are obliged to hear and smell his activities. ... The other consequences of the absence of integral sanitation - the many the hours often spent in the presence of buckets or pots containing one's own excreta and that of others (or the removal of some of it through the cell window) and the subsequent slopping out procedure - are scarcely less objectionable. The whole process must, from start to finish, be extremely humiliating for prisoners. Moreover, the CPT's delegation was left in no doubt that slopping out was also very unpopular with the prison officers who had to supervise it; indeed, the task must be debasing for them."

Dr Coyle explained that, in his experience, prisoners did find the process degrading. Indeed that was one of the reasons why there was such a rush every morning to the toilets when prisoners were opened up. They would do whatever they could do avoid using the pot or bucket during the night. Equally, the staff on duty found supervising slopping out to be quite an obnoxious task. In their report into the Prison Service in England and Wales, following upon the riots at Strangeways and other prisons in England in 1990, Lord Woolf and the then Chief Inspector of Prisons for England and Wales, Judge Stephen Tumin recorded, at para.11-101, that successive Chief Inspectors in England and Wales had made it clear that they regarded the practice of slopping out to be uncivilised, unhygienic and degrading. At para.11.108 they said:

"When courts send prisoners to prison, they are entitled to expect that prisoners will be treated in accordance with the Prison Service duty to look after them with humanity ... However, to lock up prisoners for long periods at a time with no alternative but to use a bucket for their basic needs, which then has to remain in the cell, sometimes for many hours, is manifestly inconsistent and makes a mockery of that duty. ... It is not just. The commitment we have proposed (eliminating slopping out by 1996) would remove a practice which is a blot on our prison system and which undermines the justice of the sentence which prisoners are serving."

That proposition applied a fortiori to prisoners on remand. Dr Coyle expressed the view that the general practice of providing little activity for remand prisoners and confining them to their cells for the bulk of night and day (apparently to allow them free scope to prepare their defence) compounded the degradation of slopping out, especially when they were confined in stuffy, gloomy and cramped conditions shared with another. He had been able to demonstrate at Brixton Prison that it was possible to allow prisoners to spend far more time outwith their cells within the Hall, without prejudicing security. There was no reason why that could not have been done at Barlinnie by, for example, adjusting staff/prisoner ratios. The unsatisfactory conditions within the cell were far less significant when the cell was used primarily for sleeping and for more limited periods during the day.

[56]     
Dr Jim McManus, lecturer in criminology at Dundee University, the original Scottish Prison Complaints Commissioner between 1994 and 1999, currently chairman of the Parole Board for Scotland, and over the years a regular visitor to Barlinnie, described slopping out in general as "inhumane". He described it as a grossly demeaning process for both staff and prisoners, especially when there were long lines of prisoners queuing up to use narrow sluices. As a result, there were often slops all around the place. For the staff he considered it to be not a very pleasant way to start a day's work to have to supervise this process. He had found the smell to be awful and particularly disgusting on the top flat of an enclosed Hall because of the tendency of aromas to rise. Cells designed for single occupancy were just not big enough for the accommodation of more than one prisoner, particularly when prisoners had to spend most of their time in the cell with no activity provided. He actually described the locking up of two people in a cell with a floor area of 8 square metres for 17 hours a day as "not human". On the other hand, as Prison Complaints Commissioner, he had received few complaints about the conditions of detention throughout the Prison Service in Scotland in general

[57]     
The current Prison Complaints Commissioner, Joan Aitken, sustained a complaint relating to slopping out at Saughton Prison made by a prisoner, John Higgins, in September 2000. Mr Higgins occupied a cell on his own. His complaint was about the health and safety implications of being required to eat meals in his cell in the presence of a chamber pot which he had not been given an opportunity to empty. She recommended that urgent steps should be taken to eliminate the necessity for slopping out in the hall in question and that, as an interim measure, immediate steps should be taken to mitigate the living conditions there so that prisoners were not locked in their cells during the time needed to consume their meals, and that prior to all meals they had adequate time to use the toilets and wash their hands. The Commissioner stated in her determination: "I put it on record that I see slopping out as a degrading, unhygienic and unpleasant part of prison life. It must be particularly so for those who share cells."

[58]     
The Chief Executive of the Prison Service wrote to the Commissioner to assure her that the position in the hall and other parts of the Scottish prison estate, where slopping out occurred, was well known to the Service. He went on: "The Scottish Prison Service agrees that slopping out is a degrading practice which has no place in the modern prison system." That also seems to me to be an expression of opinion by an expert. In spite of holding that opinion, the Chief Executive was unable to implement the recommendation immediately. The futility of such a complaint may explain at least in part the paucity of formal complaints about prison conditions and slopping out in particular. The infrequency of complaints is also consistent with the general resigned acceptance of their lot by both prisoners and prison officers, who have to get on with living and working in poor conditions, which Clive Fairweather observed.

[59]     
The respondents have on a number of occasions expressed views similar to those of the Chief Executive. I quote two examples. In a debate in Parliament in May 2000 the then Deputy Justice Minister Angus McKay, winding up, said: "The Executive agrees that slopping out is a degrading practice for prisoners and staff - there is no question about that" [Column 910]. As recently as 18 April 2002, the then Justice Minister Jim Wallace told the Parliament:

"There is also a pressing need to improve the quality of the existing estate so that prisoners are held in decent conditions. Many prisoners are still held in conditions that should have no place in a modern prison system. Over a quarter of prisoners, including all the prisoners at Peterhead and most of the prisoners at Barlinnie, still have no access to night sanitation. We believe that slopping out is unacceptable. Not only is it highly undesirable in itself, but it takes up staff time that could be better spent on the delivery of programmes for prisoners. How can we reasonably expect prisoners to reform and become valued members of society if we do not even provide them with a toilet?". [Column 10935].

[60]     
Counsel for the respondents objected to evidence about conditions in establishments other than Barlinnie, particularly abroad, in the course of the evidence of Coyle, Kelly and McManus. Both parties lodged a number of reports relating to prisons abroad. In the end I have not found it necessary to engage in a wide ranging review of conditions in prisons in various parts of the world and the opinions expressed by observers about them. I have confined consideration to reports relating to, and views about, conditions in Barlinnie and in prisons in the United Kingdom which are directly comparable to those that existed in C Hall.

[61]     
That is an impressive body of consistent, informed opinion about the demeaning nature of slopping out as practised in prisons in the United Kingdom, including C Hall at Barlinnie, particularly when associated with overcrowding and little time out of cell. It is incontrovertible that the impact of the process on the individual prisoner is aggravated when he must remain in his cell for 20 hours or more each day, and when that cell is shared with another and is stuffy, smelly and gloomy and plainly inadequate living accommodation for two people. Having established the general nature of the conditions in which the petitioner was detained, and their effect on his mental and physical health, and having noted the views of informed experts, the question for me to determine is what the impact of these conditions was on the petitioner. That impact has to be determined by reference to both the nature of the conditions themselves and the likely impact of subjecting a prisoner to them, as well as the actual effect on the petitioner. Before assessing the impact on the petitioner, I consider how Article 3 should be interpreted, particularly in regard to alleged degrading treatment. I will look at the way in which the European Court of Human Rights has tended to view allegations of infringement of Article 3 in cases involving prisoners, and consider other relevant judicial comments on Article 3.

RELEVANT JURISPRUDENCE ON ARTICLE 3 OF THE CONVENTION

[62]     
While the case was at avizandum, agents for the petitioner submitted a transcript of the judgment of the European Court of Human Rights of 11 December 2003 in Case of Yankov v Bulgaria (Application No 39084/97), which contains the Court's most recent comments on the interpretation of Article 3. Those acting for the petitioner did not seek to address me on the case. Those acting for the respondents were advised of this development. They responded that they were content that I should consider the authority, and that they did not wish to address me upon it. The judgment of the court reiterates and summarises some basic principles, and then applies them to the facts of the case, as follows:

"1. General principles

103. The court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no 26772/75, § 119, ECHR 2000-IV).

104. Treatment has been held by the court to be "inhuman" because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be "degrading" because it was such as to diminish the victims' human dignity or to arouse in them feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, mutatis mutandis, the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15, § 30; the Soering v. the United Kingdom judgment of 7 July 1989, Series A no.161, p. 39, § 100; see V. v the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; and Valasinas v. Lithuania, § 117, no. 44558/98, ECHR 2001-VIII).

105. In considering whether treatment is "degrading" within the meaning of Article 3, the court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III; and Kalashnikov v. Russia, no. 47095/99, § 101, ECHR 2002-VI).

106. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, Ireland v. the United Kingdom, Judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

107. The court has consistently stressed that the suffering and humiliation involved must 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. The State must ensure that a person is detained in conditions which are compatible with respect for his 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 the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (Kudla v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).

2. Application of those principles in the present case

108. The court notes that the applicant's hair was shaved off before his placement in an isolation cell (see paragraph 70 above).

109. The court has not had occasion to rule on whether or not the forced shaving off of a prisoner's hair may constitute degrading treatment contrary to Article 3 of the Convention.

110. In respect of other acts affecting the dignity of detainees, the court has held that, whilst strip searches may be necessary on occasion to ensure prison security or prevent disorder or crime, they must be conducted in an appropriate manner and must be justified. Even single occasions of strip-searches have been found to amount to degrading treatment in view of the manner in which the strip-search was carried out, the possibility that its aim was to humiliate and debase and the lack of justification (see Valasinas, cited above and Iwanczuk v. Poland, no. 25196/94, 15 November 2001). In the case of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-...), strip-searches, albeit carried out in a "normal" manner, had a degrading effect and violated Article 3 of the Convention as they were performed systematically on a weekly basis as a matter of practice which lacked clear justification in the particular case of the applicant.

111. On the other hand, the court has also held that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure was imposed in connection with lawful arrest or detention and did not entail use of force, or public exposure, exceeding what was reasonably considered necessary in the circumstances. Even where handcuffing was not made necessary by the detainee's own conduct and there was a short public exposure, the minimum threshold of severity under Article 3 of the Convention was not reached in the case of Raninen v. Finland (no. 20972/92, Reports of Judgments and Decisions 1997-VIII), as the police officer had acted in the belief that he had complied with relevant regulations; there was therefore no intention to humiliate and it had not been shown that the applicant had been adversely affected.

112. A particular characteristic of the treatment complained of, the forced shaving off of a prisoner's hair, is that it consists in a forced change of the person's appearance by the removal of his hair. The person undergoing that treatment is very likely to experience a feeling of inferiority as his physical appearance is changed against his will."

The Court decided that shaving the applicant's head, in the context of punishing him by confining him in an isolation cell for writing critical and offensive remarks about prison wardens and state organs, amounted to degrading treatment within the meaning of Article 3. That decision was made without a finding that the conduct was intended to humiliate the applicant.

[63]     
In another judgment in 2003, Öcalan v Turkey (12 March 2003) (Application No 46221/99), the Court emphasised, as it has often done, the evolving nature of Convention rights, noting:

"193. The court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see the Selmouni v France judgment of 28 July 1999, Reports 1999-V,101)."

In the case of Selmouni it was observed that, having regard to the increasingly high standards being required in the field of human rights, acts previously classified as "inhuman and degrading", might now be regarded as torture.

[64]     
While the respondents did not quarrel with these statements of principle, they founded strongly on the requirement that the ill-treatment in question must attain a minimum level of severity to fall within the scope of Article 3. They founded in particular upon the observations of Lord Hope of Craighead in R (on the application of Pretty) v DPP [2001] UKHL 61 para [90] where he said:

"... only serious ill treatment will be held to fall within the scope of the expression 'inhuman or degrading treatment or punishment'. The court said in A v UK (1998) 5 BHRC 137 at 141 (para 20) that ill treatment must attain a minimum level of severity to fall within the scope of the Article. It also said that the assessment of this minimum is relative, as it depends on the circumstances of the case such as the nature of the context of the treatment which is in issue."

It was conceded by the respondents that the conditions of the petitioner's detention were not satisfactory. While the conditions were variously described by a number of witnesses as "inhuman", "degrading", "disgusting" and the like, the concession made by witnesses from the Prison Service was generally to describe the conditions as "unacceptable". The witnesses appeared to be comfortable with that description as one which recognised a need for improvement but did not acknowledge any greater failure than falling short of a standard of desirability. Counsel for the respondents pointed to cases in which treatment characterised as "discreditable and reprehensible" and condemned by the CPT as falling below the minimum acceptable from an ethical and humanitarian point of view (Ireland v United Kingdom (1978) 2 EHHR 25, para 181) and as "unsatisfactory" (Aerts v Belgium (1998) 29 EHRR 50, paras 61-67) did not infringe Article 3. I am not convinced that the former case would have been decided in the same way today. The latter dealt with treatment in the psychiatric wing of a prison in circumstances far different from those in the present case. Similarly, B v United Kingdom (1991) 32 DR 5, where the Commission concluded that the serious overcrowding in dormitories in Broadmoor Hospital and sanitary conditions which involved the use of a commode at night, although no obligation to empty it, combined with facilities which were "extremely unsatisfactory" did not amount to inhuman or degrading treatment, related to circumstances significantly different from those in the present case, about 25 years earlier. Because the Convention is a living and evolving instrument I have not found particular assistance in older judgments or determinations of either the Commission or the Court. A number of more recent cases were subjected to detailed consideration by counsel on both sides. Their relevance varied.

[65]      The respondents founded upon Delazarus v United Kingdom (Admissibility Decision 16 February 1993) (Application No 17525/90), in which a complaint based upon conditions in the punishment and segregation unit at Wandsworth Prison in 1989 was held by the Commission to be manifestly ill-founded. Apart from the time at which the conditions were being assessed, the principal differences between that and the present case are best illustrated by reference to part of the decision where the Commission said:

"The Commission does not doubt that the conditions in Wandsworth Prison, involving overcrowding, a lack of activity, a lack of integral sanitations and poor hygiene, were extremely unsatisfactory and that they were in urgent need of improvement. The Government recognised this and informed the Commission of a rebuilding scheme to include in-cell sanitation. This is to be welcomed. However, the Commission is only competent to deal with the case is has before it, not the general situation of prisoners at Wandsworth. The applicant in the present case cannot complain of overcrowding because throughout his stay at Wandsworth he was in a single cell. This fact must have reduced the difficulties created by the lack of integral sanitation in the cell. Moreover, the poor general conditions are not the basis of the applicant's main complaint about his removal from association with other prisoners."

The similar decision made on 30 June 1993 in NH v United Kingdom (Application No 21447/93), an application relating to the same segregation area in Wandsworth Prison in 1986, was greatly influenced by the decision in Delazarus. That cell had many of the features of the petitioner's cell. However, again the particular problem caused by overcrowding and double occupancy did not arise.

[66]     
Other cases cited, which I have found of assistance, did not involve slopping out. Dougoz v Greece (European Court of Human Rights, 6 March 2001) (Application No 40907/98) related to the detention of an illegal alien, pending his expulsion from Greece, in overcrowded accommodation without proper sleeping facilities for 17 months. The period of detention was important. The overcrowding involved living two or three to a 12 metre square cell. Benches were available to sleep on, but no mattresses were provided. After describing the conditions more fully, the court pronounced judgment in these terms:

"In the light of the above, the court considers that the conditions of detention of the applicant ... in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of the period during which he was detained in such conditions, amounted to degrading treatment contrary to Article 3."

The general reference to conditions included reports by the Committee for the Prevention of Torture describing the washing and sanitary facilities which were adjacent to the cell as "appalling".

[67]     
The crucial features of Peers v Greece (2001) 33 EHRR 57 are best set out by reference to the judgment, which held the conditions in a Segregation Unit to be degrading in these terms:

"71. The court notes that the applicant accepts that the cell door was open in the day time, when he could circulate freely in the Segregation Unit. Although the unit and its exercise yard were small, the limited possibility of movement enjoyed by the applicant during the day time must have given him some form of relief.

72. Nevertheless, the court recalls that the applicant had to spend at least part of the evening and the entire night in his cell. Although the cell was built for one person, the applicant had to share it with another inmate. This is one aspect in which the applicant's situation differed from the situation reviewed by the CPT in its 1994 Report. Sharing the cell with another inmate meant that, for the best part of the period when the cell door was locked, the applicant was confined to his bed. Moreover, there was no ventilation in the cell, there being no opening other than a peephole in the door. The court also notes that during their visit to Koridallos the Delegates found that the cells in the Segregation Unit were exceedingly hot, although it was only June, a month when temperatures do not normally reach their maximum in Greece. It is true that the Delegates' visit took place in the afternoon when the applicant would not normally be locked up in his cell. However, the court recalls that the applicant was placed in the Segregation Unit during a period of the year when temperatures have the tendency to rise considerably in Greece even in the evening and often at night. This was confirmed by Mr Papadimitriou, an inmate who shared the cell with the applicant and who testified that the latter was greatly physically affected by heat and lack of ventilation in the cell.

73. The court also recalls that in the evening and at night when the cell door was locked the applicant had to use the Asian-type toilet in his cell. The toilet was not separated from the rest of the cell by a screen and the applicant was not the cell's only inhabitant.

74. In the light of the foregoing, the court considers that in the present case there is no evidence that there was a positive intention of humiliating or debasing the applicant. However, the court notes that, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule of a finding of violation of Article 3 (V v United Kingdom (2000) 30 EHRR 121, para.71).

75. Indeed, in the present case, the fact remains that the competent authorities have taken no steps to improve the objectively unacceptable conditions of the applicant's detention. In the court's view, this omission denotes lack of respect for the applicant. The court takes particularly into account that, for at least two months, the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell with no ventilation and no window which would at times become unbearably hot. He also had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cell mate. The court is not convinced by the Government's allegation that these conditions have not affected the applicant in a manner incompatible with Article 3. On the contrary, the court is of the opinion that the prison conditions complained of diminished the applicant's human dignity and arose in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. In sum, the court considers that the condition of the applicant's detention in the Segregation Unit of the Delta Wing of the Koridallos Prison amounted to degrading treatment within the meaning of Article 3 of the Convention."

Counsel for the respondents pointed out that there were also references in the judgment to the cell being compared to a "medieval oubliette", to the general atmosphere of the cell being "repulsive", to the cells being in a state of disrepair and very dirty, to there being an inadequate number of showers, to hot water being available for only 2 hours a day and to the showers serving as a cats' toilet in winter. However, it should also be observed that the cell was bigger than that occupied by the petitioner, contained a flushing toilet, had in-cell power and that prisoners were not locked in during the day. There was also reference to the Segregation Unit being unsupervised and the possibility that "anything could happen", albeit the applicant was never in fact ill-treated by anyone. The applicant was not given clothes, sheets, pillows, toiletries (including soap) or toilet paper. Although he could buy toiletries and toilet paper from the canteen, there were times when he was left with no toilet paper, especially when he had to use the toilet often due to problems with his stomach. There were no vocational activities, courses or library.

[68]      The overall conditions complained of in Peers were plainly worse than those experienced by the petitioner. However, although they included a number of features of the petitioner's detention conditions, and the applicant had to use the toilet in the presence of another and vice versa, disposal of waste was automatic and the slopping out process, which was such a significant element in the petitioner's detention, was absent. The Court reiterated that, while intention to humiliate or debase the victim is a relevant factor, the absence of such intention or purpose cannot conclusively rule out a finding that Article 3 is infringed. It is notable that account was taken of the failure to improve conditions. It is also notable that the court reiterated that a finding of degrading treatment may be made where the conditions give rise to feelings of anguish and inferiority which might foreseeably be capable of humiliating and debasing the particular individual and possibly breaking his physical or moral resistance, and does not depend on proof that he was in fact subjectively humiliated and debased or that his physical or moral resistance was actually broken. The focus was more on the nature of the treatment of than on the actual consequences upon the particular individual.

[69]     
On the other hand, the conditions in Valasinas v Lithuania (European Court of Human Rights, 24 July 2001) (Application No 44558/98), where the court held that there was no infringement of Article 3, were not as bad as those of the petitioner. The complaint was in two parts and related, firstly, to overcrowding, lack of ventilation, smelly communal squat-hole toilets and lack of access to meaningful activities while the complainer was in the prison segregation unit, and, secondly, to overcrowding, poor sanitary conditions, inadequate food and medical care and limited meaningful activities, while he was in routine conditions of detention. While in segregation, the applicant was allocated approximately five square metres of space in a dormitory. That figure was viewed in the context of the wide freedom of movement enjoyed from 6.30 a.m. to 10.30 p.m. within the whole segregation area, consisting of the dormitory, a leisure room, the kitchen, sanitation areas and the open courtyard. While the toilets were Asian-type and the general area was somewhat muddy but not unduly smelly, it was an important element in the Court's finding of no breach of Article 3 that the toilet area was separate from the rest of the segregation unit and the applicant was not obliged to use the toilet in the presence of another. In ordinary detention conditions the space in the dormitory allocated to the applicant was significantly less, but he had the same degree of freedom of movement and the same light and air and the same sanitation and laundry facilities. One particular difference between the conditions in segregation and ordinary detention was that the applicant did not have unlimited access to the shower in the latter. The Court held it not established that this limitation deprived him of the opportunity to keep himself clean to a degree which might have been incompatible with Article 3. While recognising that the general lack of work and educational facilities seemed to promote an atmosphere of boredom in the prison, the Court also noted that a number of concert and cinema screenings were organised, the detainees had access to a library and to various forms of entertainment and they could exercise in a yard or engage in other recreational activities. The applicant also had personal visits.

[70]     
Although Bensan v Croatia (Admissibility Decision of European Court of Human Rights, 16 May 2002) (Friendly Settlement, 8 November 2002) (Application No 62912/00) was settled following a visit by a Delegation of the Court to the prison, the circumstances are instructive. The cell measured 5.6 m², was in very poor condition, damp, poorly furnished and assigned to accommodate two men. However, a wide range of work and leisure activities was available, prisoners were not confined to their cells during the day, and slopping out was not a feature. The applicant was moved to a cell in a renovated wing of the prison, and thereafter reached a friendly settlement with the Government in which he was paid damages and they undertook to renovate the wing where his inadequate cell was located.

[71]     
In Kalashnikov v Russia (2003) EHRR 587 the conditions were so much worse than those experienced by the petitioner, and were endured for so much longer, that it does not bear comparison with the present case. It involved severe overcrowding of a dormitory for 18 to 24 persons, no exclusive use of a bed requiring prisoners to sleep in shifts, sleep deprivation, constant light, the recurrent contraction of various diseases and the absence of any toilet privacy.

[72]     
In a series of conjoined cases relating to conditions on death row in prisons in the Ukraine the Court expressed a view on the relevance of cell conditions and the prison regime. The Court's view is clearly set out in Kuznetsov v Ukraine (European Court of Human Rights, 29 April 2003) (Application No 39042/97) as follows:

"125 The court views with particular concern the fact that, until at earliest May 1998, the applicant, in common with other prisoners detained in prison under a death sentence, was locked up for 24 hours a day in cells which offered a very restricted living space, that the windows of the cells were covered with the consequence that there was no access to natural light, that there was no provision for any outdoor exercise and that there was little or no opportunity for activities to occupy himself or for human contact. In common with the observations of the CPT concerning the subjection of death row prisoners in Ukraine to similar conditions, the court considers that the detention of the applicant in unacceptable conditions of this kind amounted to degrading treatment in breach of Article 3 of the Convention."

The cell was apparently 2 x 5 x 3 m. The applicant was the sole occupant of the cell. The finding of degrading treatment was made, albeit there was no evidence that there was a positive intention to humiliate or debase the applicant. When Delegates from the Court visited the prison, improvements were already under way. However, the applicant had been held in the original conditions since 1996, including a period of eight months after the Convention had come into force in the Ukraine. The Court noted that the Ukraine had serious socio-economic problems and was struggling under difficult economic conditions, but observed that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. The Court also observed that the economic problems faced by Ukraine could not, in any event, explain or excuse the particular conditions of detention in which the applicant was held.

[73]     
Finally, in Pretty v United Kingdom (European Court of Human Rights, 29 April 2002) (Application No 2346/02), a chapter in the litigation surrounding Diane Pretty's efforts to secure the right to control her own death with dignity, the Court at para.52 said:

"The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

STANDARD OF PROOF

[74]     
Under reference to Ireland v United Kingdom above, counsel for the respondents submitted that, where breach of Article 3 is alleged, the standard of proof which falls to be applied is proof beyond reasonable doubt. They did not elaborate upon the submission. While that may be the approach of the European Court, it does not follow automatically that the same approach should be taken in domestic litigation. In Scotland there is in general only one standard of proof in civil litigation, the balance of probability - Mullan v Anderson 1993 SLT 835, 1993 SCLR 506. If there are certain limited exceptions to this general rule, they were not referred to. The very limited submissions made to me on this point would not justify a conclusion that the standard to be applied should be other than the general standard applicable in civil litigation. In any event, I am in no doubt what findings to make in relation to Article 3.

INFRINGEMENT OF ARTICLE 3 OF THE CONVENTION

[75]     
My consideration of the evidence of those whom I have called experienced students and examiners of prison conditions, in light of these various authorities, has led me to conclude that to detain a person along with another prisoner in a cramped, stuffy and gloomy cell which is 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 thus expose him to both elements of the slopping out process, 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 to a "dog box" for two hours or so each time he entered or left the prison was, in Scotland in 2001, capable of attaining the minimum level of severity necessary to constitute degrading treatment and thus to infringe Article 3. The question that must now be addressed is whether the petitioner was subjected to conditions of detention which reached that level of severity in light of a consideration of all the circumstances of his detention, in other words, in light of all that happened to him, having regard also to his own personal circumstances. Was he, as Lord Hope of Craighead put it, subjected to "serious ill-treatment". As was pointed out in Case of Yankov v Bulgaria, the assessment of whether the minimum level of severity has been reached is relative and depends on all the circumstances of the case, including in particular the duration of the treatment, its physical and mental effects and the state of health of the victim. There is every possibility that in any given case exposure to conditions like those in C Hall for a fairly short period, such as the relatively short period that an accused usually spends on remand in Scotland, would not in fact reach that minimum level, for example because the prisoner shared a cell with a friend and they did not in fact have to resort to the chamber pot, or because the prisoner had more time out of his cell to work for a time each evening in the kitchen or to attend an educational programme that was relevant to him, or because the prisoner was a robust young man who enjoyed good health.

[76]     
I now look more closely at the ways in which the conditions of his detention affected the petitioner. In a series of answers he explained how he felt about the possibility of having to use the chamber pot in his cell. He said that he "did not go as low as using that". When asked what he meant by that, he said that "... it makes you feel like that" and made a gesture with his index finger and thumb close together to indicate how small and insignificant it made him feel. He went on:

"It makes you feel like you don't exist because you are forced to use that toilet ... you shouldn't need to do that and I was not prepared to do that myself ... it just makes you feel low all the time ... They shouldn't make you do the toilet in a pot. There should be toilets there for you, even though you are a prisoner."

It was clear from the unchallenged evidence of the other prisoners that that sort of feeling was widespread. It was that which led to prisoners wrapping up the excrement from their chamber pots, usually in plastic bags, and then depositing the plastic bags in the sluice or lavatories. The fact that, prior to the installation of mesh on the cell windows, these packages were regularly thrown from the windows shows just how long-standing has been this aversion. On the occasions when his cell mate did defecate, the petitioner had to put paper in his nose to try to modify the impact of the smell on him. He felt disgusted on the two occasions on which it occurred. In describing the change in his circumstances when he went to Shotts Prison and occupied a cell on his own with an integral toilet, he explained the relief at no longer getting cramps in his stomach through "holding it in". Although truly disgusting events occurred only twice in the cell, and to that extent the petitioner's experience was better than that of many other prisoners, the threat that either would require to defecate in the cell was ever present because of the uncertainty about whether a request to go to the toilet would be granted. The petitioner's release for slopping out first thing in the morning clearly gave him no sense of relief in view of the disgusting conditions in which it took place, the pervasive stench, and the pressure and chaos of the whole exercise. Participating in the practice made the petitioner feel small. In his words it "got to him" and "put him down". The impression of a truly chaotic and disgusting scene every morning at slopping out, created by the various descriptions of this procedure by the prisoner witnesses and, to a slightly lesser extent, prison staff, was a striking feature of the evidence. The crucial impact that it had on the petitioner was to overwhelm his efforts to maintain his hygiene routine. He gave up even trying to take a shower early in his period in C Hall, because his eczema made taking a shower distressing and he was discouraged by the difficulty of getting one in any event. Such water that he could take to his cell was inadequate for the purpose of washing his eczematous skin properly and, once it had been used, it was not appropriate for the care of infected skin. Of crucial importance to my determination in this case is the effect on the petitioner of the serious outbreak of eczema. It is important to my determination in three respects. Firstly, I have already determined that its resurgence and persistence were caused by the conditions of detention. Secondly, its very presence was a source of acute embarrassment and a feeling of humiliation to the petitioner which he described as causing him a degree of mental stress. Thirdly, the petitioner believed that his infected eczema was caused by the conditions of his detention, in particular slopping out. His belief that the two were linked was entirely reasonable. He acted immediately to try to secure his transfer to better conditions. His solicitor's request of 22 May was refused in a letter of 24 May written by Mr Lorrain-Smith in which he said: "As Mr Napier is currently a Remand Prisoner, he will continue to be located within C Hall in HM Prison Barlinnie". The petitioner was extremely anxious about the link between the outbreak of his skin complaint and the prison conditions. That behaviour is in contrast to the normal resigned acceptance of their lot by prisoners. It demonstrated that the petitioner was feeling the impact of his eczema acutely. He persisted in his efforts to secure a move by making a number of court applications. His persistence was ultimately rewarded when Lord Macfadyen pronounced his interim order in this petition.

[77]     
Within the cell the state of the petitioner's eczema was a dominant feature in his mind. Unable to get out into fresh air or even walk around as a diversion, the petitioner could not resist constantly scratching himself and, in his own eyes and probably in fact, making matters worse. He nevertheless did manage to maintain a modest routine of reading, sleeping and listening to the radio, manifestation of the general recognition by prisoners of the need to collaborate with the inevitable and make the most of a situation over which they have no control. However, it is not surprising that the petitioner was angered when recreation was cancelled, thus reducing further the opportunity to engage in activity and also reducing further the limited time spent outwith the depressing, stuffy, smelly, gloomy atmosphere of the cell. Many features of the regime seemed designed to stamp a mark of inferiority on the petitioner. He and his cell mates had to make do with only one chair. He had to eat in the cell without getting a chance to wash first. At various times throughout the day he was systematically released for short periods and locked up. I have already recorded in detail the significant impact that his conditions had on his mental state. The stress engendered caused the resurgence and persistence of his eczema.

[78]     
Having regard to the factual evidence, the experts medical, psychological, scientific and technical evidence, the informed opinion evidence of those with special experience of prison conditions, I am entirely satisfied that the petitioner was exposed to conditions of detention which, taken together, were such as to diminish his human dignity and to arouse in him feelings of anxiety, anguish, inferiority and humiliation. He was, in my opinion, subjected to degrading treatment which infringed Article 3 of the Convention.

INFRINGEMENT OF ARTICLE 8 OF THE CONVENTION

[79]     
It is only in the event that I am wrong in that conclusion, that the question arises whether there was a breach of Article 8. The same circumstances are founded on. Article 8.1 provides:

"Everyone had the right to respect for his private and family life, his house and his correspondence".

In applying this right to the situation where a public authority has responsibility for the control and care of a person in an institution, "private life" includes the conditions in which the person is held and the circumstances in which he has to undertake the particularly personal, regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness particularly where he suffers from a serious skin complaint which requires a regular regime of care. That is self-evident. It is clear from Raninen v Finland (1997) 26 EHRR 563 at para 63, a case relating to unnecessary handcuffing for 2 hours in the context of an unlawful detention, that treatment which does not attain a level of severity such as to bring it within the scope of Article 3, may give rise to a violation of Article 8. I do not accept the submission made by counsel for the respondents that Article 8 is restricted to different aspects of detention, such as interference with prisoners' mail, prevention of contact with their family and intimate body searches. It is plain that the detention of the petitioner in the squalid conditions which I have recounted, taken together with subjecting him to the regime of slopping out as it effected his routine, necessary, personal activities amounts, on the face of it, to an infringement of Article 8.

[80]     
Unlike Article 3 which is expressed in absolute terms, Article 8.1 is subject to the provisions of Article 8.2 in terms of which an apparent infringement of Article 8.1 may be excused. Article 8.2 provides:

"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 and morals or for the protection of the rights and freedoms of other."

I shall deal with that matter once I have addressed the question whether any finding of infringement of a Convention right should be made in terms of both the Human Rights Act, section 6, and the Scotland Act, section 57(2). Counsel for the respondents submitted that any such finding should be made only in terms of Section 6 of the Human Rights Act.

APPLICATION OF SECTION 57(2) OF THE SCOTLAND ACT 1998

[81]     
Section 10 of the Prisons (Scotland) Act 1989 provides that prisoners are to be committed to such prison as may be appointed by Rules made under that Act. My attention was not drawn to any Rule which determines the prison to which any prisoner committed to custody by a court should be committed. The respondents conceded that the effect of the statutory provision, in the absence of such Rules, is that the determination of the prison in which a prisoner is to be detained is for the respondents. However, counsel for the respondents sought to distinguish the determination of the establishment to which the prisoner is sent from the selection of the particular part of the establishment in which he is to be confined. The latter, they said, is for the Governor to decide in terms of Rule 13(2) of The Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994 No. 1931) which is in these terms:

"Subject to paragraph (1), the Governor may, having regard to -

(a) the classification of a prisoner;

(b) the security category of a prisoner; and

(c) any other matter affecting the management of a prisoner,

allocate within a prison a particular part of that prison in which a prisoner, or any particular group or category of prisoners, may be confined."

It was thus the Governor, acting within his statutory powers, who initially allocated the petitioner to C Hall and subsequently turned down the request to remove him into Convention complaint conditions. The respondents submitted that what was in issue in this case was not an act or omission of the respondents but an act or omission of the Governor. When he exercised his powers in terms of Rule 13(2), the Governor was acting independently of the control of the respondents.

[82]     
In my opinion that is to read too much into the terms of Rule 13(2). All that Rule does is give the Governor a measure of discretion in assigning a prisoner to a particular part of the prison, having regard to certain specific criteria. He thus has a limited discretion. Para.13(2) is subject to para.13(1), which is in these terms:

"The Secretary of State may set aside particular prisons or parts of prisons for particular groups or categories of prisoners or particular purposes."

There was no evidence that the designation of C Hall as the hall for prisoners on remand, such as the petitioner, was the result of any particular determination made by the Secretary of State. However, the circumstances which led to the petitioner being assigned to C Hall indicate that he was not allocated there by reason of any decision or action of the Governor. That occurred purely and simply because he was held on remand. He was sent to the hall in which remand prisoners were held. It was plain that C Hall was assigned that role as a matter of policy by the Scottish Prison Service Management rather than by the Governor of Barlinnie Prison. And, as William Pretswell, Director of Finance and Business Services for the Scottish Prison Service, made clear, what the Scottish Prisoner Service does or does not do is the responsibility of the Scottish Ministers. Although the Scottish Prison Service is described as an "Executive Agency" of the Scottish Executive Justice Department, that is purely a description of the Service as a department of the Scottish Executive. Everyone who works there is a civil servant. In particular, all prison staff and headquarters staff are civil servants who work for the Scottish Ministers. Provision is made for the civil service in Section 51 of the Scotland Act. Section 51(2) states that service as a member of the staff of the Scottish Administration shall be service in the Home Civil Service. Although "Scottish Administration" is nowhere defined in the Act, Section 126(7) provides that references to "members of the staff of the Scottish Administration" are to the staff of inter alia "members of the Scottish Executive" who, in terms of Section 44(2), are referred to collectively as "the Scottish Ministers", the respondents in this petition. The petitioner was not confined in the conditions of which he complains because of some unilateral independent action by the prison Governor. He was there because, as a matter of the respondents' policy, that is where remand prisoners were held. That is why he was allocated to C Hall on his committal to prison and why his request for a move was refused and he continued to be held there.

[83]     
Counsel for the respondents submitted that, even in that situation, any finding of infringement of the Convention should be confined to holding that the respondents had acted unlawfully in terms of Section 6(1) of the Human Rights Act. They contended that the petitioner's allegations against the Scottish Ministers amounted to failures to act as opposed to positive acts. They founded upon the terms of section 57(2) of the Scotland Act which provide that the Scottish Executive "has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law." In that context, they submitted, the expression "act" does not include failure to act. The point is not without controversy. Although it has not been finally determined, in R. v H.M. Advocate [2002] UKPC 03; SC (PC) 21; 2003 SLT 4; 2003 SCCR 19; [2003] 2 WLR 317, the view was expressed that section 57(2) did not extend to failures to act or omissions - see in particular Lord Hope of Craighead at para [45] and Lord Rodger of Earlsferry at para [20]. In Clancy v Caird 2000 SC 441, the Inner House took the opposite view. Their decision may be said to be binding on me, since the comments of their Lordships in R were obiter. However, it is not necessary to resolve that matter in this case.

[84]      In my opinion, the respondents' submission is based on a misinterpretation of the facts of this case. The petitioner's complaint is that, having been placed by a court in the hands of the respondents, he was detained by them in conditions which infringed Article 3. It is their positive act of detaining him there, and continuing to detain him there when he requested a move, that is the subject of the complaint.

[85]     
Even in the wider context of Government policy, 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. The respondents founded strongly on the difficulties that they have faced over the years in modernising the prison estate. At the same time as they have faced the challenge of improving the facilities in existing accommodation, they have had to accommodate a constantly increasing prison population. The increasing prison population, the huge increase in the number of prisoners with drug problems requiring special attention in prison, and unforeseen problems, such as occasional prison riots and a significant increase in suicide in the mid to late 1990s, all combined to put pressure on limited resources. Mr Pretswell, who has been a member of the Board of the Scottish Prison Service since 1992, explained the steps that have been taken over the period since then, and continue to be taken, to cope with these challenges. In 1993 the practice of setting targets for various aspects of the work of the service was introduced. These included targets for reducing the number of cells where prisoners did not have access to night sanitation. Over the years there have been changes in the way in which these targets are set, but these are immaterial for the purposes of this case. The aim was to refurbish sufficient cells in the course of a year to meet the target. Towards the end of 1998 a review was carried out of the work required on the whole prison estate, and at that time refurbishment work was suspended while future strategy was considered. From the review there emerged a revised timetable for providing access to night sanitation and thus eliminating slopping out. The revised target, or predicted date, was 2004. The revised strategy included introducing new house blocks in certain prison complexes, rather than upgrading existing Victorian buildings, which were difficult and expensive to improve. Following a further estates review in 2002, the strategy was again altered, this time to concentrate on the construction of two new prisons, with the result that the predicted date for eliminating slopping out is now 2008 at the earliest. Mr Pretswell maintained that these various steps were taken with a view to improving the lot of the prisoner, both in and out of his cell, and ending slopping out at the earliest possible practicable date.

[86]     
All of that contrasts markedly with the plain facts relating to C Hall. In 1994 the conditions there were the subject of trenchant criticism by the Committee for the Prevention of Torture. As I have already noted, their practice is to draft a report, submit it to the Government for their response, and publish it thereafter. No attempt was made by the Government to modify this particular report, which included the following statement:

"The CPT's delegation was informed by the Scottish Prison Service that it should be possible to introduce integral sanitation in all prison cells by 1999. The Committee had hoped that this could have been achieved by an earlier date."

A similar indication was given to the then Chief Inspector of Prisons, Clive Fairweather. The issue was not a new one in 1994. Following an earlier CPT report into conditions in certain English prisons in 1990 and the report by Lord Woolf and Judge Tumin, it was accepted by Prison Services throughout the United Kingdom that slopping out should be eliminated as soon as was reasonably practicable. In fact slopping out was, with a few particular exceptions, eliminated in prisons in England and Wales by April 1996. Mr Pretswell explained that some of the measures adopted there to introduce in-cell sanitation were far from ideal and not such as the Scottish Prison Service were prepared to adopt. He explained that, in addition, the Service in England and Wales had access to greater spare capacity to which to transfer prisoners while refurbishment work was being carried out. For these reasons, and because of the various factors mentioned earlier which put pressure on resources, the 1999 target or predicted date could not be met. It had been reasonable to review the position in 1998 and then again in 2002 and to adapt policy accordingly.

[87]     
There is no doubt that, since at least 1991, when Lord Woolf and Judge Tumin recommended the elimination of slopping out in prisons in England and Wales, the respondents and their predecessors have had the elimination of slopping out in Scottish prisons on the agenda under active consideration. By 1994 their declared target for the elimination of slopping out was 1999. In subsequent announcements that target has slipped back. At the time of the petitioner's detention, and also at the hearing in this case, the respondents found it impossible to say when slopping out will be eliminated from Scottish prisons and did not envisage it until at least 2008. That is purely and simply a matter of choice by the respondents. It is recognised that a large part of the Scottish prison estate consists of old buildings in which remedial work to provide in- cell sanitation is difficult. It was claimed by the respondents that there is a lack of alternative accommodation to which prisoners can be moved while renovation work is done. They also referred to certain difficulties in identifying and acquiring sites that are suitable for the construction of new prisons. On the positive side, they point to substantial funds being spent on other major improvements of the prison estate, including the construction of a new centre at Barlinnie for visits. However, these are latter day explanations and excuses which have emerged since a positive policy decision was made to divert capital from the Prison Service to tackle other criminal justice problems, which the respondents regarded as priorities. The turning point was devolution in 1999. A rolling programme of refurbishment, including the introduction of in-cell sanitation, which started in 1996, was stopped after refurbishment work on D Hall in Barlinnie was completed in 1998. The rolling programme was abandoned shortly after the respondents took office in July 1999.

[88]     
Two particular facts demonstrate that the respondents could easily have installed integral sanitation in the cells in C Hall before 2001. The first of these was the decision of the respondents, made in December 1999, to claw £13m back from the Scottish Prison Service budget. There was a well-established practice in Government of allowing departments to carry budget surpluses forward into subsequent years. These surpluses might build up over a number of years. The discretion always existed for these funds to be redirected to other areas within the responsibilities of that Ministry, or indeed for them to be redirected to other Ministries. The Minister of Justice later explained what had happened in relation to the £13m in these terms:

"That £13m has been spent on other priorities in the Justice Department, such as a drug enforcement agency, tackling domestic violence, and establishing a witness support scheme for all of Scotland's sheriff courts. Those are proper priorities. Government is about making choices; those are the choices that we have made."

The decision was made not to use those available funds to solve the slopping out problem. Secondly, although the proposed new prisons will not be built for some time, C Hall has now been refurbished. Integral sanitation and power have been installed. Prisoners were decanted to E Hall at Barlinnie, which was described by Mr Pretswell as the "contingency hall". After enabling works had been completed, the refurbishment took six months and cost either £3.6m or £4m. The work done is of a similar nature to that done on D Hall in 1997/98. That took longer than expected and, as a result of industrial action following completion of the work, the hall was out of commission for a total of 18 months. The completion of D Hall coincided roughly with the 1998 estates review when the projected refurbishment of other halls, including C Hall, was suspended. Mr Pretswell did not at any stage in his evidence suggest that it would not have been possible to carry out the refurbishment of C Hall at an earlier date.

[89]     
It is thus plain that the cell conditions in C Hall could have been addressed before 2001. It is equally plain that the respondents took a deliberate decision not to address them when they had both the resources and the capacity to do so. They decided that the cell conditions for remand prisoners in C Hall would not be improved prior to 2001, and then assigned the petitioner to C Hall when he was committed to custody in their hands. It follows that the detention of the petitioner in the cell conditions which prevailed in C Hall was a positive decision deliberately made. That is not to say that the respondents selected the petitioner, or indeed remand prisoners in general, for particularly adverse treatment. They made policy choices which established that the conditions for remand prisoners in May 2001 were those of C Hall and they then elected to detain and continue to detain the petitioner there. It is also clear from the evidence of Dr Coyle that they could have altered the regime to allow prisoners much more time out of their cells.

[90]     
For these various reasons, I consider that section 57(2) is engaged and that the respondents acted ultra vires by detaining the petitioner in C Hall when they were aware of the activity of his eczema.

[91]     
It follows that the obvious infringement of Article 8.1 of the Convention cannot be justified and thus excused in terms of Article 8.2. While the petitioner was undoubtedly held where he was "in accordance with the law", to confine him in such conditions was not a proportionate response to the problem of requiring to securely detain for the purpose of appearance in court, a person accused of serious violence who has failed to attend for trial. The detention of the petitioner in such conditions was thus not "necessary in a democratic society" for any of the purposes set out in Article 8.2, including ensuring public safety or preventing disorder or crime. While it might be possible to justify requiring prisoners to share cells as an interim measure because the increase in the prison population, over which the Prison Service has no control, had created a demand for accommodation which could not be provided instantaneously, and thus as a necessary and proportionate interim response to the problem in all the circumstances, to hold prisoners in C Hall as a matter of policy, without taking steps to adjust the regime, and to give low priority to eliminating slopping out and thus subject remand prisoners to the conditions which prevailed there in May and June 2001 cannot be justified and excused on that basis. It follows that, if I am wrong in relation to Article 3, the petitioner was detained in conditions which infringed Article 8.

FAULT

[92]     
The petitioner also claims that he has suffered loss, injury and damage through fault and negligence for which the respondents are responsible. Counsel for the respondents accepted that they had a duty to take reasonable care for the health and safety of prisoners such as the petitioner. In their submission that duty was not breached. I reject that submission. Once the petitioner's eczema flared up, prison staff, including medical staff who were familiar with the role of stress in causing outbreaks of eczema, should have realised that to continue to detain the petitioner in the stressful environment of C Hall where the petitioner was unlikely to be able to maintain the hygiene regime that protected his skin, was likely to cause the persistence, resurgence or aggravation of his eczema. Mr Lorrain-Smith, who wrote the letter refusing the request, knew of arrangements to have the petitioner medically examined. The medical staff examined the petitioner and were fully aware of his condition. Had Mr Lorrain-Smith or the Governor given reasonable consideration to the request, medical advice would have been sought. In that event, the risk that continuing to detain the petitioner in C Hall presented to his health would have been discovered. In deciding that the petitioner should continue to be held in C Hall the prison staff failed to take reasonable care for his health. The respondents' principal defence to that claim was that the detention of the petitioner in C Hall did not cause any injury to his health. I have already indicated my reasons for concluding that it did. The respondents are accordingly liable to compensate the petitioner for the damage caused to his health.

DAMAGES

[93]     
Submissions were made on the question whether damages may be awarded at common law for distress and other psychological symptoms that do not amount to psychiatric illness. There has been an increasing tendency for courts to recognise as personal injuries, which may be so compensated, stress and distress which have an impact on a person's mental well-being without causing psychiatric illness - McLelland v Greater Glasgow Health Board 2001 SLT 446, 1999 SC 305. Where unlawful detention in conditions of intolerable discomfort is involved, courts in both England and Scotland have recognised the right to compensation, albeit the opinions expressed were obiter - R v Deputy Governor of Parkhurst Prison ex parte Hague & Ors [1992] 1 AC 58 and Moffatt v Secretary of State for Scotland 1995 SLT 729. However, it may be that damages are only payable where the distress is the result of conduct deliberately intended to harm the victim - Wainwright v Home Office [2003] UKHL 53, [2003] 4 All E.R. 943. In this case it is unnecessary to decide that issue. The psychological symptoms and stress which the petitioner suffered were part and parcel of the impact on the petitioner's physical health caused by the breach of duty for which the respondents are responsible. I have, therefore, taken account of these factors, in conjunction with the impact of the eczema, in assessing solatium. I consider damages of £2,000 to be appropriate. Interest to date would take that figure to £2,450.

JUST SATISFACTION

[94]      The final issue is whether that award should be made solely in respect of fault or also under the Human Rights Act and the Scotland Act. Section 8(3) of the Human Rights Act provides:

"No award of damages is to be made unless, taking account of all the circumstances of the case, including -

    1. any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
    2. the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."

I read that sub-section as enabling the court to decide that any award of damages for fault should be just satisfaction when taken along with the Court's finding that Article 3 was infringed. Section 100 of the Scotland Act applies the same test. Having regard to the relatively short period of time involved, I consider that the finding I have already made, combined with the award of damages for solatium, is just satisfaction to the petitioner. It would in any event be extremely difficult to quantify compensation for any element of the petitioner's experience of his conditions which would not be adequately compensated in this way, bearing in mind the role of stress in causing the petitioner's eczema to flare up, the significance that I have already attributed to the conditions of detention in causing that stress, and the account I have taken of his psychological symptoms in assessing solatium.

INTERLOCUTOR

[95]     
I shall, therefore, in my interlocutor find and declare that the respondents acted unlawfully in terms of Section 6 of the Human Rights Act 1998 and ultra vires in terms of Section 57 of the Scotland Act 1998 by acting in a manner incompatible with Article 3 of the Convention and detaining the petitioner in conditions in which he was subjected to degrading treatment; I shall find that the petitioner suffered loss, injury and damage by reason of the fault of the respondents; I shall find the respondents liable to pay damages to the petitioner of £2,450 with interest at 8% from the date of decree until paid; and I shall sustain the first, second, third and fifth pleas in law for the petitioner to the extent necessary to give effect to these determinations. I shall repel his fourth plea and I shall repel the pleas in law for the respondents, noting (but not reflecting in the interlocutor) that no argument was presented to me in support of their sixth plea.


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