By Mike Dailly, 10 July 2023, Glasgow Evening Times
LAST month the Irish High Court refused to extradite an accused suspect to Scotland on the grounds that to do so would subject him to a real and substantial risk of “inhuman and degrading treatment”.
Such treatment is unlawful under article 3 of the European Convention on Human Rights (ECHR), which is directly enforceable in Scots law under the 1998 Human Rights Act.
Arguably, Scotland’s legal system has been served poorly by successive governments since devolution began in 1999. The cracks in our system have been visible for some time but this development is a new low.
Over the years support and solutions for the Scottish justice system have been piecemeal and patchy and the Irish extradition case should be a serious wakeup call for the Scottish Government and the Scottish Parliament.
Roddy Dunlop KC, Dean of the Faculty of Advocates, said: “It is deeply concerning that one of our closest neighbours, which has had its own difficulties with its prison system, does not consider the Scottish Prison Service estate a safe place for the extradition of prisoners. There have been many improvements since the days of ‘slopping out’, but it would appear that there remains much to do.”
Let’s be candid, it’s simply embarrassing for our country’s prisons to be regarded internationally as being non-compliant with the ECHR. We mustn’t forget that an alleged serious crime which took place in Glasgow will now remain unresolved and unprosecuted because of the state of our prisons.
How did we arrive at this grim state of affairs? The court in Ireland was told the accused man would likely be incarcerated at Glasgow’s Barlinnie prison, which is at 132 per cent prison population capacity.
While remanded in custody the accused would be confined to a cell for 22 hours a day in conditions that permitted less than three square-metres of space per prisoner.
In the 2016 European Court of Human Rights (ECtHR) case of Muršić v. Croatia, the court said that where the personal space available to a detainee falls below 3 square metres of floor surface, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises.
The burden of proof is on the respective government which may be able to rebut that presumption by demonstrating factors capable of adequately compensating for the scarce allocation of personal space within a prison.
In the 2009 case of Kaprykowski v. Poland, the ECtHR examined the general principles of the treatment of prisoners with medical needs including neurological conditions and how inadequate treatment of such needs could violate article 3 of the ECHR.
In the Irish extradition case the accused had ADHD, anxiety, depression, insomnia and Asperger’s syndrome. The judge said reports on the Scottish prison system from 2022 showed a “poor recognition of neuro-developmental disorders”, which would amount to a “serious burden” for the accused.
Scottish authorities were asked for a specific assurance on how the accused’s medical needs would be met “but it was not forthcoming” said the judge.
The court said the Scottish authorities did not respond to a request for assurances of specific care for the accused. Instead, they outlined general health and NHS policies instead.
Without doubt this looks like an avoidable failure of process. The Irish High Court ought to have been provided with a personalised medical report from Scotland for the accused. It was an obvious gaffe to simply send generic policy documents.
More difficult to fix is the fact our prisons are overcrowded and not fit for purpose. Why isn’t this issue being addressed as a priority of government? The answer lies in the sticky plaster approach to justice in Scotland and the prioritisation of periphery political projects.
Ian Moir is the Criminal Legal Aid convenor at the Law Society of Scotland and a partner at Moir and Sweeney Litigation in Glasgow. For Ian, the problems with Scotland’s legal system run deep and are at breaking point.
Ian Moir said: “The Scottish Government have been warned repeatedly over many years that the chronic underfunding of legal aid means experienced lawyers are leaving in droves and young lawyers are unwilling to embark on a career which involves such antisocial and demanding work. Additional holiday courts have added to the relentless nature of the job”.
“Without immediate and substantial investment, the legal aid deserts that have been appearing in rural and island communities will spread to the central belt where we are seeing legal aid firms go out of business ever more frequently”.
If Scotland values its international reputation it needs to invest in its justice system. Why shouldn’t legal aid lawyers be paid the same as the government pays for its own legal services? And why can’t we commit proper capital investment in our prisons?