While the High Court found against the plaintiff its judgment leaves open the possibility of successful legal challenge, writes Liam Herrick
THE RECENT judgment in the case of Mulligan v Governor of Portlaoise Prison , although finding against the plaintiff, may well prove to be a significant step towards the ending of the practice of slopping out in Ireland.
It also raises a number of important issues surrounding how the European Convention on Human Rights should be applied in prison cases, and identifies key points for possible future litigation. Mr Mulligan sought a declaration from the High Court that his treatment while in prison violated his constitutional rights to bodily integrity, to health, and his right not to be subjected to torture, inhuman or degrading treatment or punishment.
He also sought a similar declaration with regard to his rights under Articles 3 and 8 of the convention. While the legal challenge was concerned with the overall circumstances of his detention in Portlaoise Prison, the lack of toilet facilities and the associated practice of slopping out formed the main focus of the case.
To anyone unfamiliar with the practice of slopping out, the extensive details set out by Judge Mac Menamin make grim reading. The practice has been widely condemned by domestic and international bodies for more than 20 years and has been abolished in almost every other part of Europe. Mr Mulligan claimed that slopping out, combined with other elements of the regime and a pre-existing medical condition, caused him distress and humiliation, including physical harm.
In human rights law, cases of this nature often turn on an assessment of whether thresholds of what constitutes a human rights violation have been crossed. While prisoners’ rights are legitimately restricted by virtue of their detention, that diminution must be reasonable and proportionate and must not fall below the standards of reasonable human dignity.
In Mulligan , the court found that the treatment complained of was not sufficiently egregious to constitute a violation of his fundamental rights when considering all the elements of the detention conditions. Judge Mac Menamin referred to positive elements of the regime in Portlaoise such as the absence of overcrowding and the fact that prisoners had substantial out of cell time each day.
Critically, the judge described Mr Mulligan as being in the “relatively privileged position” of being detained in a single cell, which he distinguished from a successful case taken against the Scottish prison authorities where prisoners who slopped out had to share cells on a regular basis ( Robert Napier (AP) v The Scottish Ministers,  ScotCS CSIH 16 ). Judge Mac Menamin pointed out that the humiliation and infringement of privacy that arise in such circumstances, as well as the hazards to health of slopping out in overcrowded or chaotic prison corridors, are of great weight in making an overall assessment of prison conditions.
On this key point, the judgment gives rise to serious concerns about the continuing practice of slopping out in other Irish prisons, where the lack of in-cell sanitation or running tap water persists and prisoners often share cells with more than one prisoner. They are also regularly locked in cells for 23 hours each day and slopping out often takes place in severely overcrowded areas. While the facts of the Mulligan case were deemed to fall beneath the necessary threshold, it is clear that other prisoners are currently detained in worse circumstances which may give rise to a different outcome.
It might be argued that as Mulligan failed the initial threshold test, the court did not have to consider fully the nature of the State’s duty of care and its obligations to address the problem.
However, it could also be argued that there might have been a more comprehensive consideration of the absolute nature of the right to freedom from torture and inhuman and degrading treatment and the consistent inaction of the State authorities on this issue for many years.
The judgment in the Mulligan case should not give rise to complacency on the part of the State on the issues of slopping out and physical conditions in Irish prisons. The judgment leaves open the possibility of a successful legal challenge in circumstances where slopping out is combined with overcrowding and a more chaotic regime, such as is prevalent in Mountjoy Prison, for example. Following the decision in Napier , the Scottish authorities embarked on an extensive programme of modernisation to ensure all prisoners have in-cell sanitation. The Scottish Prison has also paid out millions in compensation to other prisoners.
In the Irish context, feasibility studies now should be commissioned by the Irish Prison Service into the potential for refurbishment of older prisons. Failing that, alternatives such as the installation of chemical toilets should be urgently considered.
Read the article in full on the Irish Times website