Executive set to appeal slopping out judgment; Government faces bill

THE Scottish Executive is set to appeal last week's judgment that it must pay compensation to a prisoner who was forced to "slop out" while held on remand in Barlinnie Prison, the Sunday Herald understands.

The case of Robert Napier, who was awarded (pounds) 2450 in compensation for the lack of night sanitation in his cell, is likely to prompt hundreds of other prisoners to make similar claims.

Estimates have suggested the Executive could face a total bill in excess of (pounds) 3 million if the ruling is upheld, and ministers have called crisis talks with legal advisers tomorrow to discuss the situation. Senior lawyers say they will be strongly urged to appeal the decision.

Former chief inspector of prisons Clive Fairweather yesterday said he was "horrified" by the prospect that prisoners could sue the government over conditions in jails. He said he had repeatedly warned Executive ministers during his tenure that they would have to pay out unless they acted to end the practice of "slopping out".

Fairweather, who headed the prisons inspectorate from 1994 to 2002, said ministers and the Scottish Prison Service were guilty of "mismanagement" after Napier was awarded compensation for the conditions he endured in Glasgow's Barlinnie Prison in 2001.

Lord Bonomy agreed last Monday with Napier's claim that he had been treated in a manner which breached his human rights when he was held in a cell without night sanitation while on remand. At any time, up to 1200 prisoners in Scottish jails are required to slop out.

Thousands of other prisoners, including some 300 who have already begun legal proceedings, are expected to follow Napier's lead, giving rise to estimates that the Executive may have to pay out more than (pounds) 3m to those held in outdated cells.

Fairweather said he had sought legal advice before explicitly warning in 1999 that incoming Scottish Executive ministers would be liable for breaches of human rights of detainees in a report on the treatment of unconvicted prisoners held pending trial.

Two years earlier he had drawn attention to the fact that a rolling programme was in place to end slopping out in Scotland's largest prison, HMP Barlinnie, at a cost of (pounds) 25m, within five years. However, soon after the opening of the Scottish parliament in 1999, a series of decisions effectively halted progress, including the removal of (pounds) 13m from the SPS budget and the decision by incoming SPS chief executive Tony Cameron to close four jails.

Fairweather said he regretted that his advice had been ignored. "I stopped short of making a big song and dance about it when I reported on conditions for remand prisoners because I understood it would be eliminated by 2002 or 2003," Fairweather said. "But it was nuts - you would have a murderer with a nice flush toilet while a prisoner on remand, who hadn't officially done anything, was slopping out."

While remand conditions were ultimately improved, slopping out did not end, as planned, early in the new millennium, Fairweather said. "The prison closures had a profound effect on Barlinnie in particular because they made it difficult to decant prisoners so sanitation could be installed.

"It should have been possible to refurbish Robert Napier's hall by 2002," Fairweather added, "but I could see that the slopping out timetable was just being arbitrarily pushed back. I could see them being sued and it horrified me, the thought of prisoners being able to sue the government. I just don't think it is right. But this has happened because of mismanagement."

Currently, some 1200 out of 6500 prisoners in Scotland's jails still have to slop out, and there is no prospect of an early resolution, which means the Executive will continue to face compensation claims for years to come.

Fairweather said he was particularly concerned that ministers had admitted last week that Reliance Custodial Services had been awarded (pounds) 22m start-up costs relating to its controversial deal to take over prisoner escort services.

"For little more than that sum they could have finished slopping out by 2003," he said.

Meanwhile, Tony Kelly, the solicitor who represented Napier, has 300 further cases waiting to proceed and will seek interim orders in the next two weeks to transfer up to 60 prisoners in Saughton and Peterhead prisons from conditions in which they have to slop out.

Kelly said: "Lord Bonomy is no friend of the prisoner, but his decision was pretty damning. Fundamental human rights are not something a government should overlook.

"There is a great deal of material, including the reports from the former chief inspector of prisons, which shows that the Scottish Executive not only decided to leave these conditions in place but interfered with the rolling refurbishment programme that would have solved the problem. They had the capability and the resources available to end slopping out.

"If it wasn't so serious it would be ironic. Now ministers will have to pay to modernise prison conditions because they are breaching prisoners' rights, but they will have to pay compensation too. Yet Jack McConnell says he won't apologise for the decisions that were taken. Am I alone in not being able to believe what I'm hearing?"