What amounts to degrading treatment in prison?

Grant v Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011)


In Grant v Ministry of Justice, the High Court of England and Wales dismissed claims by two prisoners that the prison sanitation regime at HMP Albany breached their right under article 3 of the European Convention on Human Rights not to be subjected to degrading treatment or punishment. Hickinbottom J’s judgement provides useful guidance on what must be established for treatment to be considered degrading in the context of imprisonment.


HMP Albany is a closed prison that accommodates male prisoners in single occupancy cells. These cells do not contain toilets or running water; instead, toilet facilities are available in a recess area located on each landing of each wing as well as in other areas such as the gym and the workshop. Each landing accommodates 24 prisoners.

The main controversy in the case concerned the night sanitation regime. HMP Albany had a computer-controlled system of electronic locks that operated overnight. This system allowed one prisoner per landing to leave his cell to use the toilet facilities. Each prisoner was allowed three nine-minute trips to the toilet facilities per night, with further trips made available at the discretion of the prison officers. As a final resort, each cell was provided with a bucket, toilet paper and other sanitary items. Prisoners were instructed on how to use and clean these items and were provided with disinfectant. If a bucket was used to urinate or defecate in, the prisoner could empty and clean it in one of the recess areas.

Both claimants contended that these night sanitation arrangements were degrading (and so infringed their rights under article 3), both in and of themselves and in the context of imprisonment. One of the claimants sought to bolster this claim by arguing that the sanitation regime had interfered with his adherence to Islam. Both prisoners also claimed that the treatment violated their right to respect for their private life under article 8 of the ECHR.


In considering the article 3 claim, Hickinbottom J took as a starting point the proposition that ‘degrading treatment’ meant treatment “such as to arouse in … victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance.” According to his Honour, this meant that, for the treatment to be found to violate article 3, it was not sufficient merely to demonstrate that it was excessive; rather, the treatment must have been shown to meet a ‘high threshold’ in terms of the level of suffering involved. This would generally require “evidence that a medical, psychiatric or psychological condition has resulted from the ill-treatment, or at least contemporaneous complaints about that treatment”. In rare cases, the requisite suffering might “be inferred from the nature of [the] ill-treatment”.

Having rejected the claim that previous Strasbourg cases established that the requirement to urinate or defecate in a bucket is in itself degrading, Hickinbottom J undertook a detailed consideration of the sanitation regime at HMP Albany. Before doing so, however, his Honour made two useful observations: first, that an intention to humiliate or degrade is an important (although not conclusive) factor in finding a violation of article 3; secondly, that the context of imprisonment might heighten the degree of humiliation and degradation caused by the treatment.

Upon consideration of the evidence, Hickinbottom J found that prisoners were rarely obliged to urinate in their buckets and were extremely rarely obliged to defecate in them. Moreover, special arrangements were made for those prisoners with mobility difficulties or with acute illness. Ultimately, his Honour was unable to find that the claimants suffered any medical, psychiatric or psychological conditions as a result of the treatment, nor was there any evidence that either of the claimants had made a contemporaneous written complaint about the regime.

His Honour also rejected the argument made by one of the prisoners that the sanitation regime interfered with his religion, finding that he was not “a serious adherent to that faith”. This conclusion was reinforced by evidence provided by the prison imam to the effect that: there was no reason why the sanitation regime would interfere with the practice of Islam; there had been no previous complaints by Islamic prisoners about the regime; and, in general, the prison authorities were sensitive to the needs of practising Muslims.

In light of this evidence, Hickinbottom J concluded that, while the “sanitation regime [was] not perfect, … it [could not] be said that the Defendant [had] taken any step intended to lower the dignity of any prisoner”. Accordingly, his Honour found that the conditions fell “far below the minimum level of severity needed for a violation” of article 3. For similar reasons, his Honour also dismissed the claim based on article 8.

Relevance to the Victorian Charter

Section 10(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires that a ‘person must not be … treated or punished in a cruel, inhuman or degrading way’. Section 22(1) also provides that ‘persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person’. These rights may, however, be subject ‘to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The decision in Grant v Ministry for Justice suggests that Victorian courts may require a high level of suffering to be demonstrated before making a finding that a person has been treated in a degrading way. In the context of imprisonment, the decision demonstrates that even treatment that is in some way unpleasant and is not a necessary incident of the deprivation of liberty may be regarded by a court as not being degrading.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/QB/2011/3379.htm

Luke Pallaras is a Solicitor with the Mallesons Stephen Jaques Human Rights Law Group