Kelly v Ministry Of Justice

Prison sanitation arrangements engage article 3 only where, viewed in their full context, they cause suffering reaching the high minimum-severity threshold for degrading treatment. The occasional need to use a bucket is not, by itself, a violation. The assessment is fact-sensitive and must consider the regime, its frequency and practical operation, the prisoner’s circumstances, and the effects actually caused. A prisoner's disability may require reasonable adjustments, but a claim must be supported by evidence that the disability materially affected use of the facilities or caused significant harm. Article 8 does not provide an alternative remedy merely because conditions fall below the article 3 threshold; it requires a real interference with private life.

The claimant, a serving prisoner formerly held at HMP Long Lartin, alleged that the prison’s sanitation arrangements required him occasionally to urinate or defecate in a bucket in his cell. He claimed breaches of articles 3 and 8 of the European Convention on Human Rights and relied particularly on Napier v The Scottish Ministers [2004] Scot CS 100.

The claim had been stayed within a group of similar claims. It was reinstated after the claimant identified alleged differences from the lead-case decision in Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB), including more frequent lockdowns and arthritis said to make bucket use difficult. The central issues were whether the Long Lartin regime materially differed from the regime previously considered, whether the claimant had a relevant functional disability, and whether either Convention article was infringed.

1. Article 3. The claim was dismissed. The article 3 threshold is high and requires assessment of all the circumstances, including the nature and frequency of the sanitation problems, the operation of the prison regime, the claimant’s personal circumstances and the harm actually caused. A bucket used as a back-up facility is not inherently degrading.
2. The Long Lartin regime was materially similar to the Albany regime considered in Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB). Lockdowns were infrequent, prisoners could use the Night San system at night, and the claimant had used the bucket for defecation only rarely. Operational differences, including delays and restrictions on cleaning materials, did not materially increase the burden or approach the article 3 threshold.
3. The claimant’s disability case failed for lack of evidence. The medical records did not establish a functional impairment affecting bucket use, any relevant complaint to medical staff or prison officers, or significant physical or psychological harm. The evidence also showed that the prison had systems for reasonable adjustments, including alternative accommodation, commodes and temporary medical assistance where required.
4. The absence of in-cell sanitation did not itself engage article 8 in a manner requiring relief. The cell was single occupancy and the slopping-out arrangements, although unpleasant and less than ideal, caused no real interference with the claimant’s privacy.
5. Napier v The Scottish Ministers [2004] Scot CS 100 was distinguishable because it involved shared accommodation, no overnight access to a flushing toilet and eczema caused by the conditions. Judgment was entered for the defendant.

This was a first-instance decision. The judgment records that the related lead-case decision in Grant & Gleaves v The Ministry of Justice [2011] EWHC 3379 (QB) was dismissed, and permission to appeal was refused by the Court of Appeal in [2012] EWCA Civ 1447.