With domestic law safeguards for prisoners’ rights equivocal at best, lawyers may need to look to the European Court of Human Rights to protect their clients and challenge unsafe, unsanitary conditions. Jack Sheard reports.
HMP Wandsworth, the sixth-largest prison by capacity in England and Wales,
1Population bulletin: monthly May 2024, Ministry of Justice, 14 June 2024. is the subject of an
urgent notification, invoked on 8 May 2024, with HM Inspectorate of Prisons (HMIP) referring back to its 2021 inspection report to describe it as ‘crumbling, overcrowded, vermin-infested’. This came on the back of the
Annual report of the independent monitoring board at HMP Wandsworth for reporting year 1 June 2022 to 31 May 2023 (Independent Monitoring Boards, September 2023), which described conditions as ‘inhumane’ (see, for example, page 3). This criticism is echoed by the
Wandsworth Prison Improvement Campaign (WPIC), fronted by a former prison chaplain and drawing on the accounts of those imprisoned there.
2‘What you need to know about Wandsworth Prison’, WPIC, 2 May 2024.A question for lawyers is: however inhumane a prison like Wandsworth may be in reality, does that make it inhumane in law? What are the legal remedies available to prisoners and their representatives to challenge poor conditions?
Domestic case law on prisoners’ rights is equivocal, but decisions from the European Court of Human Rights (ECtHR) are far clearer: conditions like those described at Wandsworth, coupled with a lack of adequate healthcare, could form the basis of a successful claim under article 3 of the
European Convention on Human Rights (ECHR) – the prohibition of inhuman or degrading treatment.
The statutory regime
However, the protection extended by these regulations is limited. For example, the
Certified prisoner accommodation policy framework (MoJ/HM Prison and Probation Service (HMPPS), 22 April 2022; last updated 27 February 2023) governs cell conditions, imposing general requirements of heating, lighting and ventilation. It also mandates 24-hour access to water and sanitation, but this need not be in-cell. PSI 75/2011 (
Residential services, HMPPS/MoJ, 27 January 2020) mandates that communal areas must have ‘appropriate cleaning routines’. Prison Rules 1999 SI No 728 r28 entitles prisoners to a hot bath or shower once a week. Beyond this, little by way of hygiene is mandatory. As a result, attempts to enforce humane conditions must be based not in specific statute, but on fundamental human rights.
Sanitation
Reports on Wandsworth have emphasised the unsanitary conditions of the prison. HMIP found the prison ‘dirty’, peppered with rat droppings, and vermin ‘frequently’ seen in the prison (Debriefing paper for the inspection of HMP Wandsworth by HM Inspectorate of Prisons 22nd April to 2nd May 2024 (draft), HMIP, 8 May 2024). These unhygienic conditions are amplified by the fact that 80 per cent of the prisoners were sharing accommodation designed for single occupancy. The Annual report of the independent monitoring board at HMP Wandsworth for reporting year 1 June 2022 to 31 May 2023 noted that prisoners were eating in the same cramped cells where they went to the toilet. One disconcerting detail was the poor maintenance of the showers. There were 25 men to a shower on some wings, who all needed to use it within an hour. Meanwhile, hot water was regularly unavailable. Such conditions are ‘appalling, unhygienic, and unacceptable’.
The ECtHR has substantial case law considering unsanitary prison conditions in light of ECHR article 3. To amount to a breach, such conditions must meet a minimum level of severity. The court has noted that deprivation of liberty brings with it an element of suffering and humiliation; however, conditions must not subject prisoners to distress exceeding the unavoidable levels inherent in imprisonment (
Ananyev and others v Russia App Nos 42525/07 and 60800/08, 10 January 2012 at paras 139–141).
Overcrowding cases have a degree of specificity. An area of 3 sq m of floor space per prisoner is the ‘minimum requirement’ to avoid violating article 3; however, less than 4 sq m can also be ‘a factor sufficient to justify a breach’ (
Muršić v Croatia App No 7334/13, 20 October 2016 at paras 105–108). The size of Wandsworth’s cells, where prisoners spend upwards of 22 hours a day, is hard to ascertain. Given that the original Victorian building is still in use, the
1862 estimate of around 8.5 sq m remains relevant;
current estimates suggest 6.5 sq m for the smallest cells. This figure should be reduced, as the in-cell toilets should not be taken into account (
Muršić at para 114). Dual occupancy of such cells would invoke article 3.
The court was able to distinguish the circumstances in
Grant in part due to the greater degree of privacy available to the claimants (paras 223–225). ECtHR case law has also drawn attention to the role that a lack of privacy plays in establishing feelings of degradation and humiliation. In practice, unsanitary conditions are often accompanied by, or the result of, overcrowding (see, for example,
Neshkov and others v Bulgaria App No 36925/10 and five others, 27 January 2015; July/August 2015
Legal Action 27). The emphasis is on whether the treatment caused the claimant to feel degraded. Such treatment is to be assessed cumulatively (
Neshkov at paras 227–229). A lack of privacy is not required but can be a contributory factor.
The question is whether conditions in Wandsworth establish what was described in
Pretty v UK App No 2346/02, 29 April 2002; July 2002
Legal Action 18 at para 52 as ‘feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’. WPIC has reported prisoners’ horror and humiliation.
5‘Our first public meeting is a success!’, WPIC, 17 April 2024. Former prisoners have told me that the conditions result in ‘learned helplessness’, feeling that there is no possibility of standing up for oneself – the exact lack of resistance
Pretty was describing.
Healthcare
A further failing in Wandsworth is poor provision of healthcare. The independent monitoring board found, over a 10-month period, at least 88 examples of ‘critical medication’, including for epilepsy and attention deficit hyperactivity disorder (ADHD), not being administered to prisoners; poor record-keeping suggested that the actual number could be significantly higher (Annual report of the independent monitoring board at HMP Wandsworth for reporting year 1 June 2022 to 31 May 2023, page 22). The Debriefing paper for the inspection of HMP Wandsworth by HM Inspectorate of Prisons 22nd April to 2nd May 2024 (draft) reports that, due to ‘regime limitations’, prisoners were missing medical treatment ‘far too frequently’ (page 12).
Again, this may amount to an ECHR article 3 breach. The state has an obligation to provide ‘adequate’ healthcare to those it has imprisoned, to the same standard as that available to the population as a whole (
Cara-Damiani v Italy App No 2447/05, 7 February 20126Judgment in French. at para 66). This is an obligation as to means, not result. The practicalities of prison are to be taken into consideration (
Aleksanyan v Russia App No 46468/06, 22 December 2008 at para 140). Nonetheless, the state must take ‘all reasonably possible measures’ (
Goginashvili v Georgia App No 47729/08, 4 October 2011 at para 71). This includes prompt diagnosis of medical conditions (
Melnik v Ukraine App No 72286/01, 28 March 2006 at paras 104–106), as well as an obligation to keep medical records (
Khudobin v Russia App No 59696/00, 26 October 2006; January 2007
Legal Action 11 at para 83). Failure to record and treat ADHD is potentially within the remit of article 3, as in
Blokhin v Russia App No 47152/06, 23 March 2016.
Mental healthcare is of particular importance in prisons: half of all male prisoners, and three-quarters of female prisoners, have some form of mental health condition.
7Prison: the facts – summer 2023, Prison Reform Trust, June 2023, page 10. In Wandsworth, this is potentially shown in the ‘high’ and rising self-harm rate. HMIP noted that seven prisoners had died of self-inflicted wounds in Wandsworth in the 12 months to the inspection (
Debriefing paper for the inspection of HMP Wandsworth by HM Inspectorate of Prisons 22nd April to 2nd May 2024 (draft), page 8), which brings into consideration article 2 – the right to life. In the context of prisons, the ECtHR has found that there is a positive obligation on the state, where there is a ‘real and immediate’ risk of suicide, to do ‘all that could reasonably have been expected of them to prevent that risk’ (
Keenan v UK App No 27229/95, 3 April 2001; July 2001
Legal Action 15 at para 93).
Prisoners at risk of self-harm are provided with assessment, care in custody and teamwork (ACCT) reviews. In Wandsworth, however, these often do not take place; when they do, healthcare professionals are not always present, and they regularly conclude with blank care maps (
Annual report of the independent monitoring board at HMP Wandsworth for reporting year 1 June 2022 to 31 May 2023, page 23 and
Debriefing paper for the inspection of HMP Wandsworth by HM Inspectorate of Prisons 22nd April to 2nd May 2024 (draft), pages 8–9). These failings were relevant to the self-inflicted death of Ross Springham in Wandsworth in 2021; the ACCT’s performance was described as concerning by the Prisons and Probation Ombudsman (PPO).
8Independent investigation into the death of Mr Ross Springham, a prisoner at HMP Wandsworth, on 20 March 2021, PPO, 12 April 2024, para 71, page 11. Elsewhere, inquests have found that inadequate or ignored ACCTs amount to neglect. The inquest into Robert Fenlon’s death found that the inaction of prison officers in this regard was so grave as to amount to an unlawful killing.
9‘Robert Fenlon: historic unlawful killing conclusion at inquest into self-inflicted death at Woodhill Prison’, INQUEST media release, 29 April 2024. In these circumstances, more ‘could reasonably have been expected’ (per
Keenan at para 93).
Segregation can be a determinative contributing factor. In Wandsworth, prisoners with mental health concerns are regularly segregated, in lieu of practical healthcare. The ECtHR has found that, even where healthcare has been provided, detaining prisoners in isolation can lead to article 2 breaches (
Renolde v France App No 5608/05, 16 October 2008; September 2009
Legal Action 12 at para 106).
The court has acknowledged that ‘serious practical obstacles’ to a transfer to specialist facilities are capable of precluding a breach (
Aleksanyan at para 157). However, independent monitoring boards have found that segregation often continues, not due to unavailability of specialist services, but bureaucratic delays of referrals and assessment: what it describes in one instance as ‘baton passing’.
10Segregation of men with mental health needs: a thematic monitoring report, Independent Monitoring Boards, January 2024, page 13. This cannot amount to a ‘serious practical obstacle’. Extended segregation of the mentally unwell as an inadequate substitute for actual treatment is sufficient to breach article 3, or even, in the worst cases, article 2.
The article 8 alternative?
Where prison conditions do not meet the ECHR article 3 threshold, another option may be a claim under article 8 – right to private life.
Article 8 offers two forms of protection for prison conditions. First, it extends to the protection of a prisoner’s physical and moral integrity (
X and Y v The Netherlands App No 8978/80, 26 March 1985 at para 22). Conditions that impinge on this integrity, but do not meet the threshold of article 3, can nonetheless infringe article 8. The threshold for a breach of article 8 is significantly lower and was engaged in
Szafrański v Poland App No 17249/12, 15 December 2015. In this case, the claimant was imprisoned with inadequate heating and ventilation, and an in-cell toilet behind a fibreboard partition. The court found that these conditions did not reach the threshold of an article 3 claim; however, article 8 was engaged and his inability to relieve himself in private was sufficient to breach that right. In the event that article 3 breaches are not made out, a claim under this lower threshold could more easily be met.
Additionally, article 8 can offer environmental protection. Article 8 can be infringed when an individual’s environment is so poor as to lead to a ‘deterioration of their quality of life’ (
Di Sarno and others v Italy App No 30765/08,10 January 2012 at para 108). States have a positive duty to take ‘reasonable and adequate measures’ to secure the article 8 right (
Di Sarno at para 110). The state’s causal role, by both act and omission, is relevant, as in the recent case of
Verein KlimaSeniorinnen Schweiz and others v Switzerland App No 53600/20, 9 April 2024 (see paras 516–517).
11See July/August 2024 ‘Environment law: update’ article. The lower article 8 threshold applies to environmental claims as well; the claimant’s health need not be damaged or even threatened. In
Di Sarno, refuse left uncollected for five months was sufficient to breach article 8, even in the absence of a health threat.
Conclusion
The lack of domestic case law on prisoners’ rights is notable and the practical limitations on legal access, reported by the Association of Prison Lawyers (APL), similarly raise concerns.
12Justice barred, APL, January 2024. Judgments such as
R (AB) v Secretary of State for Justice [2021] UKSC 2813See November 2021 Legal Action 26. fuel concerns that domestic courts do not look favourably on claims by prisoners. In this case, the courts found the segregation of a minor did not violate of article 3, whereas a subsequent claim to the ECtHR was settled following a state admission that there was such a breach.
14‘Government agrees that treatment of 15-year-old boy in solitary confinement breached article 3’, Howard League for Penal Reform, 18 December 2023. It is also questionable whether the PPO provides an adequate remedy, in light of comments in
Ananyev at para 105.
However, there is ample European case law to suggest that conditions such as those described at Wandsworth can breach the state’s human rights obligations. The ECtHR has noted, repeatedly, the vulnerable nature of prisoners and the duty of protection owed to them by the state (
Mustafayev v Azerbaijan App No 47095/09, 4 May 2017 at para 53). ‘Custody’ implies care. When that care is absent, prisoners have ample cause to look to the courts for vindication.
The author is very grateful to Marc Willers KC for his assistance on this article.