The Supreme Court has been asked to hear an appeal by a former prisoner with potential implications for up to 1,000 cases concerning slopping out in prisons.
Gary Simpson is seeking a 'leapfrog' appeal, one directly to the Supreme Court rather than the Court of Appeal, on grounds including that the High Court wrongly found slopping out was not in breach of his right not to be subject to inhuman and degrading treatment.
The State is not opposing the court hearing an appeal and is not disputing a High Court finding that slopping out, on the facts of Mr Simpson's case, did breach his constitutional right to privacy and dignity.
Brian Murray SC, for the State, said the case raises an "important" legal issue affecting all cases where damages are sought for breach of constitutional rights. That concerns whether damages, as Mr Simpson contends, must be paid for breach of constitutional rights or whether declarations, as the State maintains, may be more appropriate in some cases.
Clarity from the Supreme Court concering the legal test required to establish inhuman and degrading treatment would be of assistance in other cases, he also said.
The Chief Justice, Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Iseult O'Malley, will issue a published determination later setting out whether the court will hear an appeal.
The application concerns a High Court judgment in which Mr Justice Michael White found slopping out breached Mr Simpson's constitutional right to privacy and dignity but did not breach his right not to be subject to inhuman and degrading treatment.
Mr Justice White refused to award damages for the breach of the right to privacy and dignity because of his finding some of Mr Simpson’s evidence concerning his treatment was either untruthful or grossly exaggerated.
He refused to award Mr Simpson the substantial legal costs, estimated at more than €1m, of the case but also refused to make orders requring Mr Simpson to pay the State's costs.
The judge said he had not just been critical of Mr Simpson but also of the defendants in relation to matters including access to showers for prisoners on 23 hour lock up.
Because the judge stressed his judgment was given 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 – its implications for other cases remains unclear.
On Wednesday, Micheál P. O'Higgins SC, for Mr Simpson, told the Supreme Court the case raised issues of general public importance. The central pillars of appeal were against the finding there was no breach of Mr Simpson's constitutional right to freedom from inhumane and degrading treatment; the refusal to award damages for breach of dignity and privacy; and the refusal to award costs to Mr Simpson.
The issue concerning what "level of severity" a regime of prison conditions must attain before a finding of inhumane and degrading treatment can be made is an issue of general public importance and this case undoubtedly impacts a large number of other cases, he said.
Mr Murray, for the State, said there are now just 57 cells in the entire prison stock that do not have in cell sanitation and all those have single cell occupancy.
About 1,000 slopping out cases had issued but some were not served and 650 claims are outstanding. Not all cases are the same and this case presented particular features leading to the declarations of breach of privacy and dignity – that Mr Simpson was a protection prisoner on 23 hour lock up sharing a cell with no in-cell sanitation, he said.
The State was not cross appealing the finding, on those facts, there was a breach of his right to privacy and dignity.
While issues presented by this case will not decide others, they would have a "very significant" impact depending how the Supreme Court addresses them, he added.