19th January 2005
More than 1,000 prisoners are lining up to take the Scottish Executive to court following last year's ruling that found that the practice of slopping out in Scottish prisons was "degrading", it emerged last night.
The Executive started its legal fightback against the ruling on slopping out yesterday but its attempts were overshadowed by reports that hundreds of prisoners and former prisoners have come forward to challenge the Executive on exactly the same issue.
Robert Napier, a former prisoner, was awarded £2,450 in damages last year at the Court of Session after claiming his human rights had been breached while serving as a remand prisoner in Barlinnie in Glasgow.
Yesterday, ministers returned to the court in Edinburgh to contest the ruling by Lord Bonomy, who described slopping out as a "degrading treatment".
However, the judges heard yesterday that 310 actions have already been raised in the Court of Session and the country's sheriff courts on the back of the Napier case. There are also unconfirmed reports that the Scottish Prison Service has been told to expect another 1,000 potential compensation claims.
Not all the prisoners concerned can expect to win the same level of compensation that Napier secured, and their chances of success hinge on the result of the Executive's appeal.
But if the Executive loses its appeal, every prisoner who has experienced slopping out and claims to have been affected will be hoping to get compensation, and in some cases this might amount to more than the £2,450 given to Napier.
The eventual bill for the Executive could easily be several hundred thousand pounds, and could run into millions.
Annabel Goldie, for the Tories, said ministers had got themselves into their difficult position by failing to end slopping out - caused by the lack of toilet facilities in cells - when they had the chance.
She said: "This deluge of potential cases shows two things: one, the folly of the Labour-Lib Dem Executive's refusal to end slopping out when it had the opportunity and the funds to do so and, second, why the Scottish Prison Service has had to set up a £26 million fund to deal with potential breaches of the European Convention on Human Rights."
Kenny MacAskill, for the SNP, said: "This is a mess of the Executive's own making. Ministers ought to have known that they would be challenged over this unacceptable practice."
The appeal is before Lord Osborne, Lord Hamilton and Lord Cullen, the Lord President.
Ministers are arguing for a high standard of proof in human rights claims of prisoners being held in allegedly degrading and inhuman conditions. They say that the appropriate standard of proof in deciding whether or not there had been a breach of Article 3 of the European Convention on Human Rights is proof beyond reasonable doubt - which is normally applied in criminal cases.
Neil Brailsford, QC, for the ministers, said it had been recognised that there should be exceptions to the general standard in civil litigation - the balance of probabilities.
The Executive contested Napier's claim on grounds that investment should go towards modernising prisons and not compensating prisoners.
© The Scotsman
Respect for rights in the penal system with prison as a last resort.