State urged to consider ‘slopping out’ redress scheme

The High Court ruled this week the practice breached an ex-prisoner’s right to privacy

An out-of-court scheme would be significantly less costly than having the estimated total 1,200 cases individually litigated. Photograph: Bryan O’Brien / The Irish Times

An out-of-court scheme would be significantly less costly than having the estimated total 1,200 cases individually litigated. Photograph: Bryan O’Brien / The Irish Times

 

Three law firms pursuing more than 500 “slopping out” cases want the State to actively consider an individual case assessment scheme which could lead to redress for some prisoners.

An out-of-court scheme would be significantly less costly than having the estimated total 1,200 cases individually litigated, Gareth Noble, whose firm Dublin-based KOD Lyons has 100 cases, said.

Matthew Burns of Burns Nowlan in Newbridge, which has 200 cases, said a scheme would be the “most sensible” approach and would be more efficient and cost-effective.

Cahir O’Higgins, whose firm Cahir O’Higgins & Co also has about 200 cases, agreed it would be “beneficial” for the State to consider a “mechanism” under which “discrete” aspects of the cases could be addressed outside a court setting. Each case is different and an assessment scheme which allowed for people to seek redress where appropriate should be considered, he believed.

The solicitors were speaking following this week’s High Court decision that slopping out breached ex-prisoner Gary Simpson’s constitutional right to privacy, but did not find that he was subject to inhuman and degrading treatment.

Mr Justice Michael White refused to award damages for breach of privacy rights after finding some of Mr Simpson’s evidence concerning his treatment was either untruthful or grossly exaggerated.

Mr O’Higgins, whose firm represented Mr Simpson, said the judgment was an “important vindication” of the right to privacy but said he could not comment whether his side would appeal the dismissal of the claims over inhuman and degrading treatment and refusal of damages.

The judge’s findings were particular to the circumstances of Mr Simpson’s case and related only to that case, he stressed.

The State has yet to indicate whether it will appeal the privacy decision.

Because Mr Justice White said his decision was made in the particular circumstances of Mr Simpson’s imprisonment over eight months in 2013 - being under protection, doubled up in a single cell and 23-hour lock-up - the judgment’s implications for other cases remains unclear.

Official figures for last July show 415 prisoners were on a restricted regime, most of whom had sought protection at their own request. 305 of those were locked up for at least 21 hours daily.

Matthew Burns said a number of his firm’s slopping out cases are ready for hearing but others are still at discovery or earlier stages. He believed the Simpson judgment established the State has a liability for breach of the constitutional right to privacy and said the claim of inhuman and degrading treatment will continue to be pursued.

Legal sources believe a considerable number of the cases have a reasonable prospect of securing damages because of their particular circumstances.

Cases of prisoners without previous convictions who were subject to slopping out after being jailed for a “once-off” offence may get a sympathetic hearing, sources suggested. A case where a prisoner allegedly had a bucket of faeces dumped on his head but was unable to get access to a shower for 24 hours is also among those being pursued.