Kelly v Ministry Of Justice

The Claimant is a serving prisoner at HMP Wakefield, but he was in custody at HMP Long Lartin between May 2008 and 30 September 2014. In this action, he claims that at HMP Long Lartin he was detained in degrading conditions, in that the sanitation system required him at times to urinate and defecate in a bucket in his cell. That treatment, he says, was in breach of article 3 of the European Convention on Human Rights. The Claimant specifically relies upon Napier v The Scottish Ministers [2004] Scot CS 100 in which the Outer House of the Court of Session in Scotland found that a prisoner’s article 3 rights were violated by the prison conditions in HMP Barlinnie Prison. Insofar as the conditions at HMP Long Lartin did not reach the requisite threshold for a claim under article 3, the Claimant contends that his rights to private life under article 8 were breached. He seeks a declaration that his Convention rights were infringed, and damages.

Article 3 provides:

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

In this case, the Claimant does not suggest that his treatment in prison was either torture or inhuman; but he does say that it was “degrading” within article 3.

Article 8 provides:

“1.

Everyone has the right to his private and family life, his home and his correspondence.

2.

There should be no interference by 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 or morals or for the protection of the rights or freedoms of others.”

The Claimant contends that the sanitation arrangements at HMP Long Lartin breached his right to respect for his private life.

The Defendant denies any breach of any human or other right, and denies the claim.

In claiming that the sanitation regime in prison subjected him to treatment contrary to his human rights, the Claimant is not unique. Over 550 such claims have been made, mainly in respect of conditions at HMP Albany and HMP Long Lartin.

The vast majority of prison cells in the United Kingdom have in-cell sanitation. However, in some older prisons (including HMP Albany and HMP Long Lartin) there are some cells without, because to restructure the accommodation to put in such facilities is impracticable. All of the claims concerned single cell accommodation, without in-cell sanitation, which tends to be used for higher category (i.e. Category A or B) prisoners. HMP Long Lartin has 308 such cells. It is accommodates only Category A prisoners.

With a view to effective case management of the claims, two claims were chosen as lead cases, i.e. cases deliberately selected to give guidance that would enable most if not all of the remaining cases to be resolved without a further trial. Both cases concerned conditions at HMP Albany, although the sanitation regime at HMP Long Lartin was thought to be, at least, very similar. Those two actions were tried by me in 2011, over about two weeks. As intended, a wide range of issues were ventilated, argued and ultimately determined, with the benefit of considerable amounts of evidence including expert evidence.

I dismissed both claims, in a judgment reported as Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB). The main analysis and findings of the judgment – which, I reiterate, related to cases in which the claimants had been held at HMP Albany – were as follows.

The authorities establish, clearly and firmly, that a high level of suffering is required to trigger article 3, put in various ways in the cases, e.g. article 3 is engaged only where there has been resulting “…intense physical or mental suffering” (Pretty v United Kingdom (2002) 35 EHRR 1 at [52]) or where the court has found the treatment of an individual has “adversely affected his or her personality” (Kalashnikov v Russia (2003) 36 EHRR 34 at [95]). The test with regard to minimum severity is an objective test, to be determined on the basis of all relevant circumstances, including the effects that the treatment or conditions are likely to have upon a person with the attributes of the victim.

Where there is a claim that prison conditions breach article 3, that high threshold applies. Imprisonment as a legitimate punishment inherently involves a degree of suffering: and, for article 3 to be triggered, something more than that is clearly required. Although, in this context, the Strasbourg jurisprudence well-recognises that a person subject to detention by the state is in a peculiarly vulnerable position, as I said in Grant & Gleaves (at [52]):

“… [T]he definition of “degrading treatment” is focused on the effects on the victim; and, as the Strasbourg cases indicate, unless a claimant can show, by direct or inferential evidence, that the ill-treatment in fact caused him serious suffering in terms of (e.g.) physical or psychiatric injury, or psychological harm or particularly serious evidenced distress, it will usually be difficult for him in practice to show that that objective test has been satisfied…. He may be able to do so if, for example, (i) it can be inferred from the nature of his ill-treatment that he must have suffered distress or anguish of a sufficient level, or (ii) he suffered from a mental condition that meant that he could not fully appreciate his own suffering, or protect himself from it by (e.g.) pursuing a complaints procedure.”

A requirement for a prisoner to urinate or defecate into a bucket is not of itself degrading and a violation of article 3. In every prison case, where complaint is made of the sanitation system, whether there is a breach of article 3 requires the treatment of the prisoner to be considered in full context.

There was no foundation for any complaint in respect of prison conditions at HMP Albany outside the sanitation scheme, e.g. in respect of cell size, lighting and ventilation.

Nor was there any foundation for any complaint in respect of the day time sanitation system: indeed, virtually no complaint was made in respect of that. Prisoners generally had free and unrestricted access to toilet facilities: there were urinals, toilet cubicles, sinks and a sluice area on each landing, and toilet facilities elsewhere for when they were not on their landing, e.g. in education or employment within the prison. The periods of lock-up during the day were usually regular and known in advance (e.g. at lunchtimes), and prisoners were generally able to regulate themselves accordingly, save in exceptional circumstances, e.g. when they were struck by a sudden and virulent illness. At other periods during the day when a prisoner was confined to his cell (which sometimes occurred if, e.g., he was not in education or employment), he could usually contact a prison officer by use of a bell and ask to be manually released to use the facilities.

Prisoners were confined to their cells for about 13-15 hours every evening/night. Then, they had no free access to a toilet; although, during this period, each cell door had an electronic unlocking Night San system, which, when working properly, enabled one prisoner per landing out of his cell at any time to use the facilities. That system was not perfect: it sometimes involved queuing and, for one reason or another, the system sometimes failed. However, the problems with the system were not frequent; and the regime obliged prisoners to use a bucket to urinate only rarely, and to defecate extremely rarely being almost exclusively limited to sudden illness.

As a backup, for use when necessary, in his cell each prisoner had a 5 litre bucket with lid, toilet rolls, a handwashing bowl, a 2 litre jug for water, soap, a toothbrush and toothpaste, deodorant, a towel and air freshener. Prisoners could also purchase a hot water flask and are provided with cleaning materials such as disinfectant.

In any event, prisoners were not obliged to have any waste in their cell for any substantial period, being able to empty his bucket at the first opportunity he had to leave his cell. At night, that could be by use of the Night San exit system. Otherwise, it would be first thing the following morning. The occasions when a used bucket would have to be in the cell for any substantial length of time were vanishingly rare.

In terms of emptying the bucket, there were sluice facilities and cleaning materials (cleaning solution, brushes and disinfectant) on each landing; and prisoners were given instructions in how to use, and empty, the bucket. The sluice was “public”, but it could be used without any significant queuing or jostling, and in uncramped and reasonably unrestrained circumstances.

There was no evidence that the regime caused any material additional risk to the health or well-being of prisoners. I accepted, of course, that having to urinate and possibly defecate in a cell in which one has to sleep and eat, is far from ideal. There are inevitable risks of (e.g.) splashing and spillage and, as a result, there must be to some extent a higher risk of infection as a result, particularly if the prisoner does not take care. The small size of the cell inevitably made things more difficult. However, as I found, the obligatory use of the bucket was rare, and for defecation purposes very rare; and there was no evidence of the claimants or any prisoner becoming ill as result of the in-cell sanitation arrangements.

There was no evidence that the claimants in the lead cases had suffered any distress or other harm as a result of the regime.

Neither of the lead claimants had any disability. As to disabled prisoners, I said this (at [205]):

“Those findings apply to healthy, mobile prisoners, such as the Claimants. It is clear from the evidence that prisoners who need to use toilet facilities more often, or have difficulty in using the Night San system because (e.g.) of mobility difficulties, are catered for by special arrangements, such as being accommodated in cells with integral sanitation, or by the provision of a commode. Those prisoners who are acutely ill, as Mr Gleaves confirmed, can obtain temporary special arrangements from the medical staff, who (he said) were forthcoming when such arrangements were required.”

In the circumstances, the conditions in which the claimant prisoners were kept at HMP Albany fell very far short of the article 3 threshold for degrading treatment.

I also held that article 8 could not be relied upon simply because a claim fell below the article 3 threshold; and that article 8, even if engaged, was not breached in these cases, because the regime did not substantively lower the dignity of the prisoners and their privacy was adequately respected. The prisoners did not share a cell, the regime at the sluice did nothing to disrespect a prisoner’s private life, and the prison had considered alternatives which they had not adopted on justifiable grounds.

Permission to appeal that judgment was refused by me and, later, the Court of Appeal ([2012] EWCA Civ 1447). In the Court of Appeal, Davis LJ, with whom Treacy LJ agreed, said this (at [14]):

“The use of a bucket in a cell as a back up to the otherwise entirely sufficient sanitary arrangements and facilities available, including its availability as a back up to the Night San system when that system failed, does not begin in my view arguably to show an infringement of article 3.”

He noted (at [3]) that I had found as a fact that the prisoners used the bucket to urinate rarely, and to defecate very rarely. But, in relation to degree of usage, he also said (at [18]):

“I would, speaking for myself, have to say that even had the judge’s findings of fact been other than they were in that there been a rather more frequent requirement to use a bucket in a cell than the judge found, still the same conclusion in my view would have followed.”

Davis LJ accepted that whether a prisoner’s article 3 rights were breached was fact-sensitive; and so, with regard to prisoners in other prisons, an assessment would have to be made of the regime there and the circumstances of the individual claimants. However, he added (at [19]):

“But even then the sensible and realistic approach laid down by Hickinbottom J can and should be followed. Above all, a sense of reality and proportion is needed here. It must be borne in mind that a minimum level of severity is called for for there to be a case under article 3 in a context such as the present and there is no European line of authority which compels a conclusion other than the one the judge reached.”

He also found (at [15]-[17]) that I had been right to conclude that, in the context of article 8, there had been no substantial interference or disregard of the privacy or the rights of the claimants.

The Claimant Mr Kelly commenced his claim in Worcester County Court on 9 September 2009 in a form which, he said, was standard and used by many prisoners at HMP Long Lartin. On 30 October 2009, it was transferred to the Royal Courts of Justice so that it could be managed within the cohort of similar claims to which I have referred; and his claim was stayed pending the selection and determination of lead cases, of which his was not one.

After the Court of Appeal ruling in Grant & Gleaves, and given that those cases were intended to be lead cases, on 13 May 2013, I gave directions requiring any remaining claimant who wished to continue with his claim to give notice of intention to proceed by 30 June 2013. That order made clear that, if notice were not given by that date, then the claim would be struck out with costs, without further order. 109 claimants gave such notice including, on 19 June 2013, the Claimant Mr Kelly. The claimants who did not give notice had their claims automatically struck out.

As I have indicated, the lead cases in Grant & Gleaves were chosen to enable issues to be determined so that the other cases within the cohort could be resolved without a further trial. After that judgment, for a prisoner to show that article 3 was triggered, it was incumbent upon him to identify a feature of either the sanitation scheme to which he had been subjected or his own circumstances not covered in the lead cases that resulted in the prison regime being extraordinarily burdensome to him. Therefore, on 7 August 2013, I made a further Order in relation to the 109 claims, requiring each claimant who had given notice to set out his claim (if he had not already done so) and to identify how his claim was distinguishable from Grant & Gleaves; with a direction again that, if a claimant did not comply, his claim would be struck out. Of the 109 claims, 80 claimants either did not respond at all or responded merely to confirm that they did not now wish to proceed or responded with no indication why they considered their claim materially different from the lead cases; and, in accordance with the 7 August Order, those claims too were automatically struck out.

The Claimant did not comply with the 7 August 2013 Order, and was automatically struck out, the strike out being confirmed in my Order of 5 November 2013. However, that Order gave struck out claimants permission to apply, if they had failed to comply with the earlier order but nevertheless wished to proceed and had grounds for doing so. The Treasury Solicitor wrote to the Claimant on 19 November 2013 with a copy of the 5 November Order, informing him of the steps he should take if he wanted his claim to be reinstated.

The Claimant wrote to the court on 2 December 2013, indicating that he wished to proceed, and giving two ways in which he said that his case was distinguishable from Grant & Gleaves, as follows:

“1.

All main prisoners have toilets and wash basins in their cells. The vp’s (i.e. vulnerable prisoners, of which the Claimant as a sex offender is one) have none. And on lock downs which were frequent, we did not get a slop out until around 3pm. If we had defecated in the bucket they would bring the lunch around. We had the bucket in the cell all day eating in the stench. When they brought lunch around we could not wash our hands so the scope for food poisoning was broad.

2.

I have widespread arthritis in the ankle, hip and knee joints and squatting over the bucket or potty is near impossible and on more than one occasion I have either missed the potty or fell over and have landed in the mess and have had no chance to shower until late at night.”

Those are the only particulars of his claim that the Claimant has produced: he has provided no further details of his claim, nor any further evidence in relation to it. The Claimant has throughout acted in person; but, in any event, there can be no criticism of him in respect of the particulars of his complaint, as set out in this letter. They are clear. I shall return to them shortly.

As a result of that letter, I notified the Treasury Solicitor that, subject to any submissions he may have, it seemed to me the Claimant’s case was potentially distinguishable from Grant & Gleaves on two grounds, namely medical grounds and the ground that the sanitation regime at HMP Long Lartin was materially different from that at HMP Albany. The Treasury Solicitor did not in the event oppose the Claimant’s case being restored, and it was duly reinstated by order of the court on 21 March 2014.

The Treasury Solicitor did take issue as to whether other claims were distinguishable, and I dealt with those at a hearing on 2 and 16 May 2014, giving judgment on the latter date (reported as Ashton & Ors v The Ministry of Justice [2014] EWHC 1624 (QB)).

By July 2014, the number of claimants continuing on the basis that, they said, their cases were distinguishable from Grant & Gleaves was down to single figures. Following a pre-trial review on 30 July 2014 (at which the remaining claimants appeared by video link) and further correspondence between the parties, the number of claimants was reduced to two: the Claimant Mr Kelly, and Andrew Reich. For various reasons, Mr Reich’s claim is not currently ready for trial. Consequently, this trial has been of only the Claimant’s claim.

The Claimant was born on 2 May 1952. Whilst in his 20s, he was convicted of a number of violent and sexual offences, including unlawful wounding (twice), possessing an imitation firearm, threats to kill and rape. On 11 December 1991, he was sentenced to 18 months’ imprisonment for one offence of robbery and one offence of false imprisonment committed during the course of the robbery: he had tied up and gagged the victim.

On 26 May 1992, the Applicant was granted home leave whilst serving that sentence. In breach of his condition of residence, he went to Bournemouth where he met a woman whom he knew because she had been the girlfriend of another prisoner. On the night of 31 May 1992, she allowed him to stay at her flat whilst she spent the night with her current boyfriend. However, the following afternoon she was found in her flat, dead. Her ankles had been tied together and tightly to her neck, her hands had also been tied behind her back, a sock had been stuffed into her mouth, and a pillowcase tied over her head. She had been raped, and beaten about the head, in a murder described by the judge who reviewed his sentence as sexual and sadistic.

The Claimant was charged with murder. He denied – and still denies – that he had anything to do with it, and he pleaded not guilty accordingly; but, on 29 July 1993, he was convicted of the murder, and was sentenced to imprisonment for life. The minimum term to be served was fixed by the Home Secretary at 20 years, and, following the enactment of Schedule 22 to the Criminal Justice Act 2003, confirmed by Grigson J subject only to time the Claimant had spent on remand ([2007] EWHC 2928 (QB)). It is that sentence which the Claimant was serving when he was in HMP Long Lartin, and continues to serve; because, although he has completed the minimum term, he has not yet having persuaded the Parole Board that the risk he poses to the public has been reduced to a level at which he can be safely released or even recategorised as a lower level risk prisoner. He therefore remains a Category A prisoner, i.e. the category of prisoners who pose a particularly high risk to the public.

The Defendant’s case is that the Claimant’s claim is materially indistinguishable from Grant & Gleaves. Although, as I have described, the claim was made in the standard form being used by other prisoners, the Claimant now contends that his claim is distinguishable from Grant & Gleaves on two grounds (see paragraphs 12 and 16 above).

First, he submits that the sanitation regime in HMP Long Lartin is different from that in HMP Albany with which the lead cases were concerned. He makes particular complaint about lock-downs, which took place, he said, about three times at HMP Long Lartin in the last nine months he was there. I recall that there was some evidence that such lock-downs took place in HMP Albany, a Category B prison: but, for the purposes of this claim, I accept that they took place more frequently at HMP Long Lartin, which is Category A and thus at a higher security level. The Claimant said that lock-downs took place at HMP Long Lartin to allow individual cell searches to be made for weapons, drugs and other contraband, whilst restricting the ability of prisoners to dispose of relevant items. Such searches, he said, were performed when there was a particular security concern, for example when the prison authorities believed there was to be a riot, or an escape, or that one prisoner was about to assault another prisoner – and, necessarily, without notice so that prisoners had no opportunity to prepare for a period when toilet facilities would be much less available. He frankly accepted that, as a result of these searches, weapons etc were frequently found. However, he said that the searches could take all day, and, during the day, the Night San system did not operate, so that prisoners were confined to their cells until the night regime came on stream in the early evening. Then, the usual Night San system did operate; but, because of the restrictions on access to the facilities during the day, there was increased demand for exits (and thus longer delays) at night. As a result, he said that, during lock-downs, prisoners were unable to slop out in the morning, and sometimes not until the evening. That meant that, if a prisoner had defecated in his bucket, he would have the stench in his cell all day, including at mealtimes, meals being passed through the door which otherwise remained locked during a lock-down. There were no handwashing facilities, because prisoners ran out of water, and were unable to replenish the supply, and so the scope for food poisoning was the greater. A wing might be the subject of a lock-down for as long as two or even three consecutive days. Once over, the usual regime was resumed.

In addition, the Claimant said that there were a number of operational differences between HMP Long Lartin and HMP Albany. At the former, sometimes it was not clear when a prisoner had returned to his cell, and so the next prisoner in line did not know to exit his cell straightaway which increased delays. Prisoners often used up their full 14 minutes to chat to other prisoners, rather than going straight back to their cells once they had finished their necessary ablutions. Unlike HMP Albany, no cleaning brushes or disinfectant were kept in all recesses. He produced a letter from a Custodial Manager at HMP Long Lartin dated 3 July 2014 confirming that restrictions on brushes and disinfectant were applied due to restrictions imposed at HMP Long Lartin as a high security prison.

Second, the Claimant submits that the sanitation regime at HMP Long Lartin is more burdensome for him than other prisoners because of his medical condition, namely arthritis from which, he says, he suffers in his ankle, hip and knee joints, and his back. That condition makes it very difficult, if not impossible, for him to use a bucket (as I understand it) for the purposes of defecation because of the need to squat. More than once – indeed, perhaps 5-6 times during his six years at the prison – he said he missed the bucket, or he slipped and fell into his own excreta.

I will deal with those grounds in turn.

I received evidence as to the sanitation regime at HMP Long Lartin from David Armitage, an Operational Support Grade, who has worked at the prison for 18 years, all but one in the control room which (amongst other things) controls the operation of the night sanitation system. He produced a statement dated 12 September 2014.

Other than one matter (i.e. whether there were brushes and cleaning materials readily available in each of the recesses at HMP Long Lartin, to which I shall return), the Claimant agreed Mr Armitage’s evidence. Consequently, particularly in view of the limited nature of the Claimant’s claim on this ground, I can deal with this evidence quite briefly.

The sanitation scheme at HMP Long Lartin is essentially similar to that at HMP Albany. During the day, prisoners generally have free access to toilets etc, except at times of lock-up such as lunch which is of a similar duration to HMP Albany, namely one hour 40 minutes (i.e. between 12.10 and 13.50). At night, the prison operates the same Night San system as HMP Albany, although there are slightly different operational parameters. For example, the night regime operates for only about 11 hours during the week and 13 hours at weekends at HMP Long Lartin, rather than 13-15 hours at HMP Albany; time allowed out during a Night San release is 14 minutes, as opposed to nine minutes; and there is no limit to the number of exits per night, as there is at HMP Albany. On the face of it, these differences are to the benefit of prisoners at HMP Long Lartin; but, the Claimant said that, as a result of them taken together, in practice it could take two hours to get out of the cell using the Night San system at peak evening times, compared with the usual period of under half an hour at HMP Albany.

With regards to defects, Mr Armitage accepts that the Night San system at HMP Long Lartin has not always been reliable. He said that, in the 1990s, there were frequent faults with the system, about two or three per day – although most were minor and dealt with in a matter of minutes. However, the computer software was upgraded in 2000, and there have been significantly fewer problems since then. That reflects the historical position as to reliability of the Night San system at HMP Albany. Mr Armitage said that a fault in any event did not usually mean that the whole system was not functional – the problem might relate to only one specific cell or landing, or the perimeter gate which does not affect prisoners’ ability to leave their cells at all. Mr Armitage produced the log of faults since the Night San system was refurbished in April 2011. As I understand it, previous logs are no longer available. Mr Jaffey for the Defendant had analysed the faults recorded in the log to mid-2014, which showed 40 faults, three involving a wing and the rest a single cell. None involved the whole prison. That analysis was not challenged. Mr Armitage explained that, where only one cell was involved, the individual prisoner might be removed to a functioning cell, or even a different part of the prison, so that he would have access to toilet facilities for the rest of that night. If a landing or wing was involved, the Estates Department would be contacted for an immediate call out that night. Faults are logged on line and thus reported directly to the Estates Department so that they can attend and correct the fault themselves, or contact the maintenance contractor if the fault cannot be repaired by electricians on site.

On the basis of that evidence, I am entirely unpersuaded that the reliability of the Night San system at HMP Long Lartin was materially worse than at HMP Albany.

With regard to lock-downs, the Claimant himself gave positive evidence that these were used only for genuine security reasons, and certainly there is no evidence that they were not. They were relatively infrequent – perhaps once every three months – and, whilst they might last for a couple of days, prisoners could use the Night San system at night to empty their buckets. As Davis LJ indicated in Grant & Gleaves, the use of a bucket could have been substantially greater than in those cases at HMP Albany and still fall very far short of the article 3 threshold. Even on the basis of the additional use suggested by the Claimant at HMP Long Lartin because of increased lock-downs, that threshold is nowhere near reached.

It is noteworthy that the Claimant said that, although he used his bucket quite frequently to urinate (in part because of his diabetes, which resulted in increased micturition: see below), he only used it a few times in the 6 years he was at HMP Long Lartin, including the times he was required to use it during lock-downs. As to the frequency, the Claimant’s evidence was not consistent: he said he used the bucket to defecate only once or twice during his six years at the prison, then 5-6 times, and then (in his closing) somewhat more frequently, eventually saying that he could not properly hazard a figure – but he never suggested that it was anything more often than rarely.

I am also unpersuaded that the operational differences identified by the Claimant were material. In coming to that conclusion, I particularly note:

In summary, for the Claimant the day regime posed no problems, save for unplanned lock downs with which I have dealt. In respect of the night time system, the evidence was that the Claimant was a skilled user of the system: he pressed the button as soon as the system came into operation to get an early place in the queue, and he obtained several exits each night at which he could (e.g.) shower and shave, as well as use the toilet facilities. His main concern was having faeces in his bucket for lengthy periods; but his own evidence was that he only used the bucket to defecate rarely, and he was unable to empty his bucket reasonably promptly very rarely indeed.

Having considered all of the evidence, I do not consider that there is any arguable material difference between the regime at HMP Long Lartin and that at HMP Albany.

The second ground on which the Claimant seeks to distinguish his case from Grant & Gleaves is that he asserts that, unlike the healthy claimants in the lead cases, he has arthritis – and the functional disability from that condition is such that to require him to use a bucket as a toilet is humiliating and amounts to degrading treatment within article 3.

I have already indicated that, in the lead cases, there was evidence that the prison authorities took account of disabilities such that disabled prisoners were (for example) given a cell with in-cell sanitation if their disability meant that the use of a bucket was more difficult for them than for people without disability.

There is guidance for prisons in relation to the management of disabilities in prison. From December 1999, that guidance was contained in Prison Service Order 2855, “Prisoners with Physical, Sensory and Mental Disabilities” (“PSO 2855”), which set out policies and procedures designed to ensure compliance with the Disability Discrimination Act 1995. The following provisions were particularly relevant:

The PSO was updated from time to time – notably to take into account the positive duty in the Disability Discrimination Act 2005 to promote equality of opportunity – but the substance of the guidance remained essentially the same.

On 14 April 2011, PSO 2855 and other orders that were designed to ensure non-discrimination of individuals with protected characteristics were replaced by Prison Service Instruction 32/2011 (“PSI 32/2011”), which again contained materially similar provisions, including “mandatory actions” to which all staff must adhere and follow (paragraph 1.7). These include encouraging prisoners to disclose their disabilities, making reasonable adjustments and locating disabled prisoners in appropriate accommodation (paragraph 1.6).

The particularly relevant provisions of PSI 32/2011 are as follows:

“8.2

Governors must consider on an ongoing basis what prisoners… with a range of disabilities might reasonably need and ensure that reasonable adjustments are made for disabled persons…. Governors must consider whether prison policies and practices, the built environment, or a lack of auxiliary aids and services could put a disabled prisoner… at a substantial disadvantage and if so must make reasonable adjustments to avoid the disadvantage….

8.3

Governors must ensure that where it is not possible to make the reasonable adjustments required the prisoner is transferred to another appropriate establishment.”

Under the heading “Reasonable Adjustments”, and the subheading “Where shall we locate the prisoner?”, at paragraph G7, it says:

“It is not normally appropriate to locate a prisoner with a disability in healthcare unless he… needs that level of medical care. Placing a prisoner on healthcare does not allow them to take a full part in the regime of the establishment, and blocks a bed that may be needed by a prisoner who is actually ill. Disabled prisoners should have reasonable adjustments made to enable them to live in normal accommodation. Where this is not possible the prisoner should be transferred to another appropriate establishment. ‘Appropriate’ means in accommodation suitable for his… disability, in the right category, with access to the required interventions, work and education, and other regime activities…”.

Mr Jaffey, who referred to and relied upon these provisions, submitted that, where a prisoner had a disability such that he had a need to use toilet facilities much more frequently than the norm, or found it more difficult to use the sanitation facilities provided, reasonable adjustments might include (i) moving that prisoner to a cell with integral sanitation, if necessary at a different prison; (ii) the provision of a commode; or (iii) temporary special assistance from medical staff, e.g. during an acute illness. As I have already indicated (see paragraph 8.13 above), the evidence in the lead cases was that prisoners at HMP Albany who needed to use the toilet facilities more often or had difficulty in using the night time system, because (e.g.) they had mobility problems, were catered for by special arrangements, such as being accommodated in cells with in-cell sanitation or by the provision of a commode.

It appears clear that the Defendant has a system in place for accommodating the needs and requirements of disabled prisoners. The question is whether, in the Claimant’s case, he suffers from a disability which that system for some reason failed to deal properly whilst he was accommodated at HMP Long Lartin, with the result that he suffered degrading treatment in article 3 terms.

In my judgment, the Claimant fails at the first hurdle. He claims that, for him, use of the bucket was difficult or impossible because of a functional disability arising from an arthritic condition: but there is no evidence in support of that contention.

His medical records do record that 2009 x-rays showed “mild spondylotic change only” in his spine; and later records indicate that he later had insoles prepared apparently on the basis that his gait was causing him some problems. There are a few other references to back pain, and regular prescriptions for aspirin and ibuprofen which, the Claimant says, were prescribed for his back. There is also evidence that he has been provided with a bed board, a chair with arms and an extra mattress and pillows to ease his back.

However, there is no evidence that his condition caused any material functional deficit in respect of his use of a bucket as a toilet. I have had the benefit of seeing a copy of his full medical records and a medical report dated 3 July 2014 by a Dr G A Crouch instructed by the Defendant, based on those records. The records do not record any complaint that the Claimant was having any difficulties using a bucket to urinate or defecate, although the Claimant was a regular attender at the prison surgery for a variety of complaints notably type 2 diabetes (diagnosed in 2003) and tendonitis, and tennis elbow. There is no reference to any complaint by the Claimant that any of the medical conditions from which he suffered caused him difficulty in using a bucket for his night time toilet requirements. Although, as Dr Crouch confirms, untreated diabetes might result in increased frequency of micturition (and, at the Claimant’s age, frequency of needing to use the toilet might in any event increase due to prostatic enlargement), (i) the Claimant’s diabetes has been treated and frequently monitored since 2003 (generally but, I accept, not entirely controlling the condition), and (ii) in any event, as Dr Crouch again confirms, there is no evidence that the Claimant has complained about frequency of micturition at any time during his stay at HM Long Lartin. None of these matters is recorded as ever having been raised with any medical professional, although the Claimant has had more than adequate opportunity to do so.

In response to this absence of references in the medical records, the Claimant gave two, not entirely consistent responses. First, he said that he was embarrassed to raise this as an issue with his medics. I simply cannot accept that evidence. He was a regular attender at the medical surgery, and does not appear to have been inhibited from telling his healthcare professionals about the problems to which his medical conditions led: I do not accept that, had he suffered any significant functional disability in using the bucket, he would not have made his difficulties clear to his medics. In any event, second, he said that he did raise these issues with his medical practitioners, but they did not record them and indeed ignored them. However, again, I do not accept that evidence insofar as it suggested that the Claimant suffered from a medical condition which resulted in a specific loss of function and disability so far as using a bucket is concerned, that was not recorded by the healthcare professionals, who appear otherwise to have been careful if not meticulous in recording his complaints and also receptive to requests for special equipment to ease the back pain that he had. In this case, other than the Claimant’s own assertion – not reflected in his original claim or his medical records - there is simply no evidence that the Claimant suffered a relevant functional disability in his use of the in-cell sanitation facilities, whether due to an arthritic condition or otherwise.

But, further, as Dr Crouch confirms, there is no evidence in the medical records that the lack of in-cell sanitation has had any effect on any aspect of the Claimant’s physical or mental health; nor is there any written complaint of the sanitation arrangements (notably, the use of the bucket) to the prison governor despite there being the usual complaints procedure in prison; nor is there any complaint recorded by his prison officer in their weekly contacts. The fact that he has never mentioned these matters to anyone is evidenced by the Claimant’s medical records and full prison case note history. The Claimant says that he did send in written complaints on each of the say five times he fell when trying to use the bucket, and these have gone missing. He said he kept a record of his complaints, but that too had gone missing, during his recent prison move. However, he has not persuaded me on the evidence I have seen that he made any written complaint.

Further, although this ground of complaint concerns his own medical condition, it is noteworthy that, as in Grant & Gleaves, the Claimant has not sought to adduce any evidence from any other prisoners, either as to the sanitation regime he alleges is deficient or, just as importantly, the effects that it had on them; or from any other individual or institution. I have no evidence before me that the sanitation regime had any significant detrimental effect on any prisoner.

Finally, for most of the six years he was at HMP Long Lartin, the Claimant worked as a cleaner, cleaning (amongst other things) the sanitation facilities in the recesses. He worked both morning and afternoon, with a second prisoner. The Claimant explained that the second man did the heavier work, when his back was troubling him: but there is no evidence at all, in the medical records or elsewhere, that the Claimant was impeded in this work by his back at any time. Even if he had a working partner, the work would inevitably have been fairly heavy, and would have involved kneeling, stooping and other movements that would exert his back. There is no evidence that he had a single day off that work as a result of back pain.

As I have indicated (see paragraph 8.2 above), unless a claimant can show, by direct or inferential evidence, that the ill-treatment in fact caused him serious suffering in terms of physical or psychiatric injury, or psychological harm or particularly serious distress, it will be difficult for him in practice to show that that objective test for the article 3 threshold has been met; and the Strasbourg court is generally insistent on a sound evidential base for any finding of harm as a result of treatment alleged to result from a violation of article 3. In Grant & Gleaves, I said I had no hesitation in saying that they had utterly failed to convince me that either has suffered any distress, anxiety, feelings of humiliation or other harm as a result of the sanitation regime at HMP Albany (see [220]). If anything, there is in this case even less evidence that the Claimant has suffered in any such respect as a result of the regime at HMP Long Lartin. On the evidence before me, there is simply no evidential basis upon which I could sensibly find that the Claimant had suffered any significant harm as a result of the sanitation facilities at HMP Long Lartin; certainly, I am entirely unconvinced that the Claimant has suffered any significant harm (yet alone harm that approaches the article 3 minimum level) as a result of that system.

For all those reasons, this claim must fail. The Claimant has singularly failed to establish that there is any material difference between the sanitation regime at HMP Albany and that at HMP Long Lartin; or that he has any disability which has caused him any significant difficulty in using the sanitation facilities at that prison, including, on the rare occasions required, the in-cell bucket; or that he has suffered any significant harm as a result of the sanitation system at HMP Long Lartin.

From his submissions, it is clear that the Claimant’s real complaint is that any use of a bucket that needs to be slopped out – even a single use – is, in his view, unacceptable. Clearly, in-cell sanitation is optimal; and any use of a bucket in a locked cell, such that it needs to be emptied at a later stage, is not ideal. But in this claim we are not considering whether the sanitation regime is ideal, or whether it could possibly be improved. For the Claimant to succeed in this claim, he must show that the prison conditions to which he was subject at HMP Long Lartin were such as to meet the high threshold demanded by article 3. For the reasons I have given, this claim falls woefully short of the article 3 threshold requirements.

Napier, to which the Claimant specifically referred in his closing, does not assist him: as indicated in Grant & Gleaves at [225], it is easily distinguishable, because in that case (i) the complainant shared a cell and had to perform toilet functions in front of his cell mate, and (ii) the complainant had no access to a flushing toilet over night and (iii) the conditions of detention caused him to suffer eczema. It has so been distinguished, not only in Grant & Gleaves itself, but also in other post-Napier Scottish and Northern Ireland cases to which I referred in Grant & Gleaves.

Further, for the same reasons as given in Grant & Gleaves (see especially [234], summarised at paragraph 8.15 above) the claim cannot be saved by article 8, which was but faintly prayed in aid by the Claimant: in short, the sanitation system at HMP Long Lartin did not have any real impact on the privacy of the Claimant, the cell being a single cell and the slopping out procedure at the sluice, if unpleasant, being entirely appropriate.

Consequently, I consider this claim as put forward by the Claimant at trial, as a whole, to be lacking in any merit. I dismiss it, and shall direct that judgment be entered for the Defendant.