On 6 September 2023, District Judge Anthony Rich TD, sitting at Birmingham County Court, rejected attempts by the Government and G4S, the world’s largest security company, to strike out claims brought by five long-serving prisoners in Davies and others v G4S Care and Justice Services (UK) Ltd and Ministry of Justice. The claimants sought damages under the Human Rights Act 1998 in respect of the conditions at HMP Birmingham in the run-up to the prison riot of December 2016 and thereafter, arguing that they amounted to a violation of Article 3 ECHR.
Mr Davies, the lead claimant, complained of exposure to twenty-nine months of appalling, unhygienic and unsanitary conditions, from the accumulation of rubbish, the stench, and the vermin, to the lack of clean clothes or privacy when defecating or urinating, faulty toilets, broken windows, frigid temperatures, the failure of the hot water system, and widespread uncontrolled violence as well as a lack of open-air access.
The claimants pointed out that G4S’s catastrophic failures of management at Winson Green Prison caused the Government itself to take direct control of the running of the private prison in August 2018. The events were later the subject of a damning report by Her Majesty’s Chief Inspector of Prisons, which recorded “appalling” failures at the prison, and further led to a Parliamentary inquiry before the Justice Select Committee in December 2018.
In light of these claims, District Judge Rich resoundingly dismissed the defendants’ argument that bad though the conditions may have been, they were not such as to cross the threshold for inhuman or degrading treatment under Article 3.
By reference to the judgments of the Grand Chamber of the European Court of Human Rights in Bouyid v Belgium (app. no. 23380/09, 28th September 2015) and Muršić v Croatia (app. no. 7334/13, 20th October 2016), and to the judgment of Hickinbottom LJ in R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1258, the Judge acknowledged the fundamental importance of human dignity and the need to analyse the entire cumulative impact of their conditions of detention. He held that if the prison conditions were as alleged by the claimants, then it was highly likely that they experienced feelings of anguish, inferiority, humiliation, and degradation such as would fall within the scope of Article 3.
The Judge rejected any suggestion that allowing these claims to proceed would “open the floodgates”, pointing out that such flood would be no less than deserved “if there has been a sustained and persistent regime, through neglect or underfunding … or otherwise, which of itself breaches the norms of the ECHR”.
The Judge commented that there was a “clear public interest” in the claims proceeding, rather than allowing them to be “derailed by an over-focus on the precise effect of that sustained and, it is said, improper regime on the particular claimants and whether those individuals have sustained severe suffering”. The Judge further held that it was in, “the public interest for the full facts to be established and adjudicated upon at trial, embarrassing for the defendants though it may be to have such, if any, of their shortcomings as there may be aired in such a public forum”.
Despite the Judge’s views, and the modest nature of the compensation sought by each of these publicly-funded claimants, the defendants maintained they should recover their costs of circa £60,000. Refusing the request, the Judge awarded the claimants their costs instead with an interim payment of £25,000. Determined to avoid a full trial, the Government and G4S sought permission to appeal. It was refused, but they now have until 4th October 2023 to renew their application to a Circuit Judge.
For those familiar with the atrocious state of Britain’s prisons, both public and private, the case represents an all-too-familiar pattern. As long ago as 2019, a Dutch court[a] refused an extradition request made by the UK on account of what it described as the “already established real danger of inhuman or degrading treatment in these establishments” which “has not been eliminated”, and the similar decision recently reached by a German court[b] has only reignited the issue.
The Council of Europe, of which the European Court of Human Rights forms part, has also repeatedly inspected UK prisons and other detention facilities under the auspices of its Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). Its last visit[c], from 8th to 21st June 2021, highlighted “the cumulative deleterious effects on the lives of prisoners of chronic overcrowding, poor living conditions and the lack of purposeful regimes”, which it described as “long-standing problems [that] have been exacerbated by a significant escalation in levels of violence. The Covid-19 pandemic may have resulted in a temporary reduction in overcrowding and in violence levels coming down, but … the underlying structural causes of overcrowding and violence in prison have not been addressed.”
The claimants were represented by Becket BEDFORD ford, barrister, of No5 Barristers’ Chambers, and David Shaw, consultant Solicitor at Instalaw Solicitors and Scott-Moncrieff & Associates Limited.
[a] https://www.theguardian.com/world/2019/may/10/dutch-court-blocks-extradition-of-man-to-inhumane-uk-prisons
[b] https://www.thetimes.co.uk/article/germany-refuses-to-extradite-albanian-to-uk-due-to-state-of-our-prisons-nv5sdlx9m
[c] https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-publishes-report-on-its-2021-visit-to-the-united-kingdom
