Prisoner who ‘slopped out’ not entitled to damages

When the Thornton Hall new-build prison was put on ice during the financial crash, it sped up the refurbishment of Mountjoy and virtually eliminated the Victorian practice of ‘slopping out’ a court was told recently.

A judgment has been delivered in the case taken by a prisoner on the grounds that ‘slopping out’ amounted to a breach of his right to dignity.

The case taken by plaintiff Gary Simpson against the Governor of Mountjoy Prison, the Irish Prison Service, the Minister for Justice, Ireland, and the Attorney General related to his detention on D1 wing at Dublin’s Mountjoy Prison in 2013.

Plaintiff

The plaintiff sought a declaration that the conditions and circumstances of his imprisonment amounted to a breach of his right to dignity and his right not to be subjected to inhuman and degrading treatment, as guaranteed by articles 40.3.1 and 40.3.2 of the Irish Constitution.

The court ruled that his treatment was in breach of his constitutional right to privacy. However, the court also ruled that the prisoner in question was not entitled to compensation. Mr Justice White found that the prisoner was an untruthful witness who had exaggerated parts of his evidence about his treatment while in jail for eight months in 2013.

The court ruled that the practice of ‘slopping out’ did not amount to inhuman and degrading treatment.

Judge White said a prisoner’s constitutional rights were restricted, but not “totally set at nought”. He noted the intention of authorities to refurbish Mountjoy Prison and move to single-cell occupancy with in-cell sanitation.

A Department of Justice statement to court pointed out that 98 per cent of prisoners have in-cell sanitation. Overcrowding had been an increasing problem since the 1980s, and this had forced the abandonment of the one-prisoner-to-a-cell principle in some cases.

The plaintiff, who was jailed for three years for robbery in 2013, with a further three years suspended, issued a High Court plenary summons on 30 July 2014. He was seeking various declarations and claiming damages, including exemplary and punitive damages.

Right to dignity

The plaintiff’s case alleged that the practice of slopping out and using a chamber pot in the context of shared-cell occupancy amounted to a breach of both his constitutional right to dignity and respect for his private life, and of article 8 of the European Convention on Human Rights.

Among the plaintiff’s complaints were having to eat meals while enduring the smell of faeces and urine. The plaintiff lost one stone in weight during his incarceration. The plaintiff also alleged that, due to double-cell occupancy, the dimensions of the cell breached the recommended minimum of 11 square metres.

Mountjoy Prison is a Victorian structure that was built in 1850 and based on a design from Pentonville Prison, which was completed in 1842. When constructed, the prison had 500 cells and was designed to keep prisoners isolated, and its cells were designed for single occupancy.

The original prison had crude in-cell sanitation, with no sink or running water.

Little had been done to maintain Mountjoy Prison, since it was intended to replace it with a purpose-built prison after a sub-committee of the Irish Prison Service Interim Board issued a written report in May 2003.

This report rejected the proposal to redevelop Mountjoy Prison in favour of a green-field site, in tandem with the relocation of the Central Mental Hospital from Dundrum.

Jimmy Martin (Assistant Secretary of the Department of Justice Equality and Law Reform, with responsibility for prison and probation policy from 2004 to 2009) stated that the Government gave approval, in principle, to build a prison on a green-field site in February 2004.

In all, 30 sites were examined. Building land was expensive to acquire at the time. The Government was advised that the estimate for a new prison was €150 million. Because the expenditure involved was so large, it was decided to finance the project by way of a public-private partnership.

Thornton site

The Government granted approval in January 2005 for the acquisition of a 150-acre site, known as the Thornton site, in Killsallaghan, north County Dublin, proximate to the M50 and N2 to Ashbourne.

Over the period from the first Government recommendation until the tendering process, there was substantial inflation in costs in the building industry.

Tenders invited for the new project were assessed in April 2007 and a preferred bidder was chosen, with the construction then estimated to cost €500 million.

To enable planning for the prison to go ahead, a new Prisons Act was passed in 2007. This was finalised in July 2008.

At this time, the financial crisis was bearing down on the Irish State. Financial backers withdrew support for the project from the successful bidder, who by then increased the tender costs by 30-40 per cent.

The Government decided that this was too expensive. The decision not to go ahead on grounds of cost was made in May 2009, and the Thornton new prison project was placed on hold.

Attention was turned again to the redevelopment of Mountjoy. Unusually, pressure on the system was easing at the time because of a reduction in the number of committals.

The new Midlands’ Prison extension had also come on stream. It was decided to proceed with the refurbishment of Mountjoy, wing by wing.

Conflicting figures

An October 2015 report by the Comptroller and Auditor General into the purchase of the Thornton site concluded that, since 2010, many of the problems at Mountjoy have been dealt with at a much lower cost than the figure originally proposed to build a new prison on the Thornton site.

When the proposed development at Thornton was scaled upwards, to provide 1,400 cells and accommodation for 2,200 prisoners, the estimated cost of the larger build was €525 million, around 3.5 times the cost indicated when the original purchase of the site was approved.

The Comptroller’s report said that there was inadequate analysis of the likely costs of developing a new prison, and that these appeared to have been significantly understated.

The cost of addressing the problems at the Mountjoy complex appeared to have been overstated, the Comptroller said.

The report criticised the escalation in plans for Thornton Hall and how the site has been valued by the prison service. The Comptroller and Auditor General suggested that the site was overvalued to the tune of some €48 million.

 The report concluded that the appropriation account presents inconsistent valuations of prison land and buildings, with the property at Thornton being treated differently to similar property held by the Prison Service elsewhere.

For the Department of Justice, Jimmy Martin explained in evidence to court that to carry out renovations of existing prisons, it was necessary both to have the capital resources, but also to have space to move prisoners when refurbishment work was being undertaken, as major renovations required the emptying of wings of prisons.

On in-cell sanitation, Mr Martin stated that, going back to 1993, nearly every male adult prisoner was in a cell with no in-cell sanitation, but that now there were only a small number of prisoners who were slopping out – at maximum 50.

In cells in Portlaoise Prison, where there is no in-cell sanitation, all are single occupancy, with substantial ‘outside’ time afforded to prisoners. There is work underway to remedy the situation in Limerick, and approval in principal to replace the relevant block in Portlaoise. Therefore, he said, slopping out as a feature of the Irish prison system has more or less ended at this point in time.

‘Enormous strides’

An August 2009 report by the Inspector of Prisons noted that enormous strides had been made by the Irish Prison Service, with enhanced care for prisoners and a high standard of both healthcare and workshops.

The inspector said that, while his report highlighted many negatives in Mountjoy, this should not be taken as a total condemnation of the prison, which had many positives.

A subsequent report in March 2011 noted “a sea change for the better in many aspects of the prison”.

Following the purchase of the green-field site at Thornton Hall, it was decided not to invest a large amount of capital on Mountjoy on the basis that the prison would only be used in the short term. Investments were made in other prisons to reduce overcrowding.

In his evidence, the plaintiff Gary Simpson stated that he had requested protection on arrival at Mountjoy. All those prisoners housed in D1 landing in Mountjoy at the time were on a protection regime at their own request. The separation unit in the prison was also being used to house protected prisoners.

Prisoners on protection were locked in their cells, on average, for 23 out of 24 hours. When there were lower numbers of protected prisoners, they had more time out of their cells. In general, their access to recreation, education and leisure activities was severely restricted.

The evidence before the court pointed to a very challenging problem being faced by the administrators in the segregation of protected prisoners.

Governor Gregg Garland gave evidence that, at the time of the plaintiff’s detention in 2013, the separation unit was full, and D1 wing was selected for the overflow in order to keep prisoners safe.

His estimate at the time the plaintiff was in prison was that there were approximately 12 to 15 factions in the jail, and that they could not mix with each other.

When vacancies became available, the longest-serving prisoner in D1 was then sent to the separation unit.

Governor Gregg said that the plaintiff at all times accepted that the various protection groups on the D1 landing were kept separate from each other.

‘Satisfactory chamber pots’

In his judgment, Mr Justice White wrote: “Subject to my criticism of the practice of having to defecate in one’s cell in the first place, the court is satisfied that the chamber pot provided was satisfactory. The lids provided fitted snugly to the pot itself.

“If the lid was replaced promptly onto a pot, the smell would diffuse after a reasonably short period of time. The chamber pot was of sufficient size to accommodate the average urine output of an adult male over a 24-hour period, and given the opportunity which the plaintiff had to slop out, I am satisfied that it was of sufficient size to both urinate and defecate.”

A modesty screen or a commode structure would have “gone a long way” to give better respect to the plaintiff’s privacy rights, the judge said.

Evidence

In evidence, Governor Edward Whelan, now retired and who was Campus Governor of Mountjoy from 2010, stated that they tried to introduce portable toilets, which were trialled on a number of wings in the prison, in or around 2011 or late 2010, but that the prisoners were not keen on them. He stated that the offenders would tell you that they would rather have their chamber pots and did not want to use them.

In his 1 June 2016 evidence in relation to hygiene standards in the wing, the plaintiff Gary Simpson stated that the cleaners were heavy drug users, and that he did not think they did any work.

Various witnesses for the defendants gave evidence that cleaners were trusted prisoners with drug-free status, and if they misbehaved, they would be relieved of their hygiene duties.

Mr Justice White said in his judgment: “This is a nasty allegation and I am satisfied it is not an exaggeration but untruthful evidence by the plaintiff.”

Dr Patrick Randall, clinical psychologist, gave evidence that the plaintiff had done well despite being a vulnerable man from a traumatic background who had become homeless after losing his mother at 16.

In spite of the conditions of his imprisonment, there was no diagnosable psychopathology. He was not overly depressed, was not suffering from any anxiety disorder, and was still committed to sobriety. He presented properly and was articulate.

In his judgment, Mr Justice White said: “I consider [Governor] Whelan to have been a highly responsible governor and a truthful witness. He was held in high regard throughout the Prison Service, as reflected in the evidence of various witnesses. He was a hands-on governor and not remote.

“The court accepts his judgement that, after a wide consultation, he felt that he had no choice but to use D1 for protection prisoners, but I note at that time the number of protection prisoners going there was very small. He estimated about seven.

“The court was surprised that the issue did not receive serious consideration at executive level within the Prison Service. It was left to the campus governor of the prison to deal with. The matter was not revisited when the numbers increased to the extent that the whole of D1 landing housed protection prisoners.”

The judgment went on: “It is to the credit of the management and staff in the prison that they went to substantial lengths to mitigate the hardship on prisoners in other ways.

“The governor’s parade between 7am and 8am, Monday to Friday, when every protection prisoner was visited and asked about their requests, was humane and commendable. It was carried out on a voluntary basis by prison staff. I am satisfied that, contrary to the evidence of the plaintiff, prison management and staff were conscious of the undesirability of the regime they had to enforce.”

Credibility issue

The judge held that Mr Simpson was not entitled to damages and that he had “huge issues” with the credibility of some of the plaintiff’s evidence.

The judgment will have implications for hundreds of other pending cases by prisoners. Although the judge said that he did not regard this as a test case, legal sources believe it to be significant.