Supreme Court rules ‘slopping out’ a violation of prisoner’s rights

Man was exposed to ‘distressing, humiliating’ conditions in Mountjoy Prison, says judge

Mountjoy Prison reception wing. Photograph: David Sleator

Mountjoy Prison reception wing. Photograph: David Sleator


The Supreme Court has awarded a former prisoner €7,500 damages over violation of his constitutional right to protection of his person by having to ‘slop out’ in prison, and endure “substandard” cell conditions, over almost eight months in 2013.

The five-judge court’s unanimous judgment allowing Gary Simpson’s appeal has implications for more than 1,000 cases taken over “slopping out” in prisons and sets out principles of general application to such cases.

Mr Justice John MacMenamin stressed the €7,500 award to Mr Simpson cannot be seen as a “benchmark” when other cases may differ on the facts. It must be “open to question” whether it would always be necessary to have a High Court hearing, he added.

In a concurring judgment, Mr Justice Donal O’Donnell agreed with his colleague it was not permissible, at least in the way advanced in Mr Simpson’s case, to seek to blend decisions of the European Court of Human Rights (ECHR) on prison conditions with a claim for damages for breach of an Irish constitutional right.

The case arose from slopping out, a practice condemned in 1993 by the European Committee on the Prevention of Torture and criticised in several other reports, including by the Inspector of Prisons in Ireland. “Slopping out” refers to the manual emptying of human waste from a bucket or other container when prison cells without toilets are unlocked in the morning.

In 2010, the State began a programme of prison refurbishment with a goal of single cell occupancy and in cell sanitation.

‘Degrading treatment’

In his 2017 High Court judgment on Mr Simpson’s case, Mr Justice Michael White found slopping out over seven and a half months in Mountjoy Prison in 2013 breached his constitutional right to privacy and his dignity but not his right not to be subject to inhuman and degrading treatment.

Those findings were made in the context of the particular circumstances of Mr Simpson’s imprisonment. He was a protected prisoner doubled up in a single cell with no in-cell sanitation and on 23-hour lock-up.

Mr Justice White refused damages because of his finding Mr Simpson told some untruths and grossly exaggerated some of his evidence.

He also refused Mr Simpson his legal costs, estimated at more than €1 million, against the State. He did not order him to pay the State’s costs because of the court’s criticism of matters, including limited access to showers for prisoners on 23-hour lock-up.

Mr Simpson appealed to the Supreme Court. The State did not appeal the finding concerning his right to privacy/dignity but disputed his unenumerated constitutional right not to be subject to inhuman and degrading treatment was also breached.

Giving the Supreme Court’s main judgment, Mr Justice MacMenamin said the case was brought under the Constitution and ECHR but, as the Constitution is the primary law of the State, it takes precedence over the ECHR issues.

The conditions to which Mr Simpson was exposed were “distressing, humiliating and fell below acceptable standards in an Irish prison in the year 2013”.

Human dignity

A deprivation of liberty must be in accordance with law and any limiting of prisoners’ fundamental rights must be proportionate and not fall below identified standards to protect human dignity. Conditions of detention must comply with national and international standards which Ireland has “pledged to uphold”.

The legal protections applicable are reflected in national law, court decisions and the Prison Rules and are based on values enshrined in the Constitution.

Issues concerning liability for the substantial costs of the case, which ran for 30 days in the High Court, will be decided later unless agreement on costs is reached between the sides.

Mr Justice MacMenamin said, while not describing this as a “test case”, the substantial legal issues had to be explored and submissions on costs would be necessary in light of the court’s judgment.