€7,500 damages for ex-prisoner who had to 'slop out' in prison

€7,500 damages for ex-prisoner who had to 'slop out' in prison

The Supreme Court has ruled a former prisoner's constitutional right to protection of his person was violated by having to 'slop out' in prison and he is entitled to €7,500 compensatory damages.

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 on prison conditions with a 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 here.

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

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 Mr Simpson's 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 - 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 €1m, 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 European Convention on Human Rights 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 in Mountjoy in 2013 were "distressing, humiliating and fell below acceptable standards in an Irish prison in the year 2013".

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.

Mr Simpson's entitlements had to be measured against the constitutional guarantee in Article 40.3 to vindicate the rights of the person as far as "practicable", he held.

The conditions to which he was exposed diminished the right to privacy and the "value of dignity due to him as a person", even within the limitations necessarily arising from his detention.

That violation of his rights under Article 40.3 required, on the facts of his case, damages.

While lies and exaggerations by Mr Simpson concerning his prison conditions and treatment were "serious", they cannot be seen as amounting to an outright abuse of process, the judge said.

'A vulnerable man from a traumatic background'

This was not a fraudulent claim and substantial parts of the evidence were found to give rise to infringement of a constitutional right which required vindication in damages.

Mr Simpson was "a vulnerable man from a traumatic background" but it could not be said he sustained "significant" injuries.

Having applied basic principles concerning damages, he held Mr Simpson was entitled to €7,500 compensatory damages.

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 MacMenamim 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.

Whether Mr Simpson will ultimately receive the entire benefit of the award was beyond the court's control and there may yet be forms of redress available to the victims of his crimes, he added.

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