Slopping out in prisons appeal to be heard by Supreme Court

Around 1,000 other slopping out cases are on hold until this appeal is decided

Supreme Court will address whether damages must be paid for breach of constitutional rights or whether declarations may be more appropriate in some cases.

Supreme Court will address whether damages must be paid for breach of constitutional rights or whether declarations may be more appropriate in some cases.

 

The Supreme Court has agreed to hear an appeal by a former prisoner with potential implications for up to 1,000 cases concerning slopping out in prisons.

The appeal will address important legal issues as to what criteria apply for determining whether or not treatment of a prisoner is inhuman and degrading.

The court will also consider whether damages need always be awarded for breach of constitutional rights, an issue with widespread implications.

In a published determination, a three-judge Supreme Court, comprising the Chief Justice, Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Iseult O’Malley, said Gary Simpson’s case raised issues of general public importance entitling him to a “leapfrog” appeal direct to the Supreme Court, bypassing the normal route of the Court of Appeal.

The appeal is against a judgment of the High Court’s Mr Justice Michael White which found slopping out breached Mr Simpson’s constitutional right to privacy and dignity but not his right not to be subject to inhuman and degrading treatment.

His findings were made in the context of the particular circumstances of Mr Simpson’s imprisonment over eight months in Mountjoy Prison in 2013 - being under protection, doubled up in a single cell and under 23-hour lock-up.

Mr Justice White refused to award damages for the breach of the right to privacy/dignity because of his finding some of Mr Simpson’s evidence concerning his treatment was untruthful or grossly exaggerated.

He also refused Mr Simpson the legal costs, estimated at more than €1 million, of the case against the State but declined to order Mr Simpson to pay the State’s costs arising from his criticism of matters including limited access to showers for prisoners on 23-hour lock up.

Submissions

Last month, the Supreme Court heard submissions on behalf of Mr Simpson and the State as to the scope of appeal.

The State is not disputing the finding that slopping out, on the facts of Mr Simpson’s case, breached his constitutional right to privacy/dignity.

It wants the Supreme Court to address whether damages must be paid for breach of constitutional rights or whether declarations may be more appropriate in some cases.

Mr Simpson wants the court to overturn the finding of no breach of his right to freedom from inhumane and degrading treatment along with the refusals to award him damages for breach of dignity/privacy or costs.

In the Supreme Court determination, the judges noted the facts as found by the trial judge were not disputed with the effect the issues on appeal are the legal consequences arising from those facts.

The general issues for appeal include the “overarching principle” by reference to which it must be determined treatment of a prisoner is inhuman and degrading, they said.

In that context, other issues potentially arise concerning the extent to which the court can take into account the circumstances applicable to the relevant prisoner’s detention, they said.

Any final assessment as to whether inhuman and degrading treatment has been established in a particular case will necessarily be “somewhat fact specific”, they said.

A more general issue arose concerning the factors to be taken into account in assessing whether such treatment has been established and there was an issue of general public importance as to the proper approach to be adopted in weighing positive and negative factors for such assessment, they said.

An issue of general public importance also arose concerning the circumstance, if any, in which it may be appropriate for a court to refuse to award damages for a breach of constitutional rights.

A leapfrog appeal would assist the High Court in managing about 1,000 other slopping out cases, on hold until Mr Simpson’s appeal is decided, the court added.

It has made directions aimed at ensuring a speedy hearing of the appeal.