Why the ‘slopping out’ ruling is important

Hundreds of cases by other prisoners over slopping out may be affected by the High Court’s finding of breach of the constitutional right to privacy of former Mountjoy Prison inmate Gary Simpson.

The State Claims Agency said the number of such cases lodged had reached 1,263 by the end of last year.

Any such cases will be decided, as Mr Justice Michael White stressed, on their own specific circumstances, but his judgment appears of particular relevance to prisoners who were on protection.

Mr Simpson’s case ran for 30 days over six months last year and heard evidence from many witnesses, including key figures, serving and retired, from the Irish Prison Service and Department of Justice, economists, psychologists and prison officers.

The judgment was not just critical of parts of the ex-prisoner’s evidence but also set out serious criticism of the prison authorities and State concerning delays over years in tackling the problem of doubling up in cells with no in-cell sanitation when prisoners were on protection and 23-hour lock-up.

The judge said he was “surprised” that issue did not receive “serious consideration at executive level within the Prison Service.

“It was self-evident that the maintenance of prisoners in a doubled-up cell for 23 hours a day without in-cell sanitation was a breach of their privacy however limited by imprisonment. There was no attempt at amelioration by the provision of portable toilets, commodes or modesty screens.”

Hardship mitigated

Contrary to Mr Simpson’s evidence, the judge found prison management and staff were “conscious of the undesirability of the regime they had to enforce” and said it was “to their credit they went to considerable lengths to mitigate the hardship of prisoners in other ways”.

Either or both sides can appeal the judgment which contained good and bad news for both as it upheld one of the two core claims advanced but rejected the second.

Mr Justice White declared there was a breach of the constitutional right to privacy, but refused to declare the practice of slopping out amounted to inhuman and degrading treatment in breach of Mr Simpson’s rights under the Constitution and European Convention on Human Rights.

The judgment appears not to rule out the possibility of damages in other cases if claimants are found to have more credibility.

Legal sources believe the issues raised have such implications that, if it is decided to appeal, a “leapfrog” appeal directly to the Supreme Court may be sought instead of the normal procedure of an appeal to the Court of Appeal.

A significant observation by the judge was that Irish constitutional law on protection from torture or inhuman or degrading treatment or punishment is “at least equal to, or greater than”, the protection afforded by the convention.

Privacy rights

He also said the case was a clear claim for damages for breach of constitutional rights and a citizen can take a claim over alleged breach of privacy rights under the Constitution and under section three of the convention.

The court could find a breach of constitutional rights without, contrary to what the defendants argued, attributing responsibility for that, he held.

His rejection of the defence’s preliminary claims that the case was statute barred due to alleged delay in bringing it, or that Mr Simpson should have secured authorisation from the Personal Injuries Assessment Board, could assist other claimants.

His observation that failure to seek judicial review while imprisoned may affect any consideration of damages appears to favour the defendants.

Another observation that it was not an interference in the constitutional separation of powers for him to take the view that Mountjoy should gave been refurbished earlier, and to consider that matter in the context of the claim of inhuman or degrading treatment, may cause concern for the State in the context of other cases.