Jul 15, 2010
“Slopping Out” – Unacceptable but not Unconstitutional
A decision was handed down by the High Court yesterday in the case of Mulligan v Governer of Portlaoise Prison, which, as noted here before, involved a claim for damages from a former prisoner of Portlaoise Prison based on the assertion that the practice of “slopping out” was humiliating, degrading, and in breach of his constitutional and human rights. The High Court decided against Mr Mulligan and considered that, in the particular circumstances of this case, the practice did not amount to a breach of his rights either under the Constitution or under the European Convention on Human Rights.
A Press Release from the Irish Penal Reform Trust notes that a most disappointing element of the judgment is that while the Court found the conditions of sanitation, ventilation and hygiene in this case to be “unacceptable”, they were not considered sufficiently bad to constitute a violation of constitutional rights. In his judgment, MacMenamin J noted that the Irish Prison Service had undertaken to address the issue of “”slopping out” eleven years ago, in 1999, having considered the practice to be unacceptable since the early 1990s, but no real progress has been made on this issue in the older prisons.
Speaking on behalf of the Irish Penal Reform Trust its Executive Director, Liam Herrick, stated that it
…believes that, as a general principle, the clear affront to human dignity and the health risk to both staff and prisoners presented by slopping out, combined with a consistent failure of the State to address this issue, demands action. The decision of the Court in this case in no way reduces the urgency of this issue nor takes from the national disgrace that is Ireland’s position as the only Western European nation that persists with this barbaric practice. The utter lack of political will to address this issue of fundamental human rights is depressing, and the legal analysis of the High Court does not diminish that political reality in any way.
A report on the case in today’s Irish Times notes that MacMenamin J considered that the evidence in the case did not establish that the conditions of Mr Mulligan’s detention were such as to seriously endanger his life or health, although they were clearly demeaning. The learned High Court judge also considered that there was no evidence that the lack of in-cell sanitation and the resultant conditions for Mr Mulligan’s detention were punitive, malicious or evil in purpose. He did note, however, that cell ventilation was substandard and that while he was not declaring a breach of rights in this case this was not to be seen as a positive finding in terms of the standards of prison detention.
A notable aspect of the case is that while the High Court made no declaration of a breach of constitutional rights or rights under the ECHR (such as the right to privacy and protection against inhuman or degrading treatment) on the facts of this particular case, it may have left the door open for future cases. MacMenamin J referred in his judgment to a number of European Court of Human Rights decisions in which the combination of “slopping out” and other negative aspects of imprisonment led to a situation where prisoners’ rights were adversely affected. The types of situations in those cases, which were not found by the court in Mulligan included:
- The combination of slopping out and doubled-up cells;
- The combination of slopping out and prison overcrowding;
- Chaotic slopping out and sluicing conditions; and,
- Particular health vulnerabilities on the part of an individual prisoner.
In this regard, the Irish Penal Reform Trust makes the following comment:
…it should be borne in mind that in prisons like Mountjoy and Cork, slopping out in multiple occupancy cells and severely overcrowded landings continues, often in circumstances where prisoners spend up to 23 hours in their cells each day. For example, the Inspector of Prison in a report on Mountjoy in 2009 found one, not unusual, case of seven men sharing three buckets for the purposes of slopping out.
The IPRT further states its view that
…unless real action is taken to address our degrading and dangerous prison conditions, more cases are likely to be brought in the coming years.
Information on a number of ECHR cases in this area is available here, in a presentation delivered by the Irish Human Rights Commission to the IPRT’s Sixth Prison Law Seminar: Litigating Prison Conditions, earlier this week. It remains to be seen whether Mr Mulligan will persue his case to the Supreme Court.
Update: The text of the judgment is now available here.
Good article, interesting case.