CONCURRING OPINION OF JUDGE COSTA

(Translation)

In the end, having weighed up the pros and cons in this difficult case, I found a violation of Article 3 of the Convention. However, I would like to explain my views, as the judgment, with which I concur for the most part, does not fully represent them.

1. I would observe in the first place, because I feel it is right to do so, that I did not discern in this case any intention on the part of the British judicial, prison or medical authorities to humiliate or maltreat Judith McGlinchey, who was sentenced to four months’ imprisonment and accordingly incarcerated in New Hall Prison, Wakefield, on 7 December 1998. But I would add immediately that in the Court’s view “the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3” (see V. v. the United Kingdom , no. 24888/94, § 71, ECHR 1999 ‑ IX, and Peers v. Greece , no. 28524/95, § 74, ECHR 2001-III). That case-law has to be taken into account.

2. Nor do I think that it is desirable to lower the threshold of severity below which the Court will not hold that treatment is inhuman or degrading. Article 3 should not be cheapened or trivialised through overuse. However, I think that the present judgment does not lower that threshold. Moreover, I firmly believe that the facts of the case should not be assessed with “the wisdom of hindsight”, nor should one be influenced by the fact that Judith McGlinchey unfortunately died, on 3 January 1999, as a result of the cardiac arrest she suffered on 14 December 1998 and its after-effects. But, for the reasons I shall give, even if I confine my attention to the position at the time of her incarceration, disregarding its tragic outcome, I can reach the conclusion that the treatment suffered by Judith McGlinchey was objectively inhuman and/or degrading.

3. What counts in my opinion is a nexus of facts. The victim was a heroin addict and suffered from asthma – she had been taken into hospital six times in the previous year on that account. In spite of her run-down state of health she was sentenced to prison, although there had been an alternative proposal for a probation order. As soon as she entered New Hall Prison she began to suffer frequent attacks of vomiting. Although she had stated that she wished to come off heroin and the prison doctor had immediately prescribed her medicine to ease the withdrawal symptoms, this drug was not given to her on her second day in prison (perhaps for good reasons, but the fact remains). She was also twice locked in her cell as a punishment for bad conduct. But above all, the vomiting did not cease, day or night, and it was accompanied by a steep and heavy loss of weight – 7 kg in forty-eight hours and 10 kg between the Monday of her arrival and the following Saturday. I can accept that the prison doctor’s absence during the weekend was not decisive, as there was a locum doctor in attendance, and she could have asked to see him. But I cannot understand why the prisoner was not taken into hospital during the first few days of her sentence, when she was vomiting continually, had lost 20% of her body weight in five days and was known to be simultaneously trying to come off drugs. It was only on Monday morning, that is one week after she began her sentence, that she was taken to hospital by ambulance, because she had collapsed and the appearance of her vomit revealed the presence of blood in her stomach. That factual nexus is the reason why I and the majority of my colleagues reached the finding of a violation.

4. Moreover, that finding must be placed in a wider context, that of the special treatment to be given to prisoners whose state of health gives cause for concern. In cases like that of the victim, such concern might even entail a decision that their state of health is incompatible with committal to prison, or in any case with continued detention.

5. The growing awareness of such a necessity, which in itself is a separate matter from the issue I mentioned above of the threshold of suffering to be taken into account, is reflected in numerous Council of Europe instruments. I could cite three recommendations of the Committee of Ministers to member States: the Recommendation of 12 February 1987 on the European Prison Rules (No. R (87) 3), the Recommendation of 8 April 1998 concerning the ethical and organisational aspects of health care in prison (No. R (98) 7) and the Recommendation of 29 September 2000 on improving the implementation of the European rules on community sanctions and measures (Rec(2000)22). I could also cite the third general activity report of the European Committee for the Prevention of Torture, covering the period from 1 January to 31 December 1992, which includes a chapter (no. 3) on health services in prisons.

6. Our Court itself is becoming more and more sensitive to this concern. It has frequently stated in its judgments that assessment of the question whether treatment reaches the minimum level of severity for the purposes of applying Article 3 may depend on the sex, age and state of health of the victim (see, for example, Raninen v. Finland , judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821-22, § 55). I might also mention, although the facts were different (the prisoner being seriously disabled), Price v. the United Kingdom (no. 33394/96, ECHR 2001-VII), with the separate opinion of Sir Nicolas Bratza, whom I joined, and the separate opinion of Judge Greve; the authors of those opinions considered that the very principle of committing the applicant to prison was incompatible with Article 3 on account of her condition. See also the recent Mouisel v. France (no. 67263/01, ECHR 2002-IX) in which the Court unanimously held that there had been a violation of Article 3 on account of the conditions of treatment and continued detention of a person suffering from an incurable illness.

7. I naturally do not underestimate the difficulties the judicial authorities have to face when they are required to determine what kind of sentence to impose on an offender in bad health or those of the prison authorities and health services when they have to choose between treatment on the spot and admission to a hospital outside prison, especially as ill health among prisoners is unfortunately not an exceptional circumstance, particularly on account of the ravages of drugs among offenders. But if I return to the instant case, I think that all those authorities, for their part, underestimated the seriousness of Judith McGlinchey’s personal condition. The accumulation of errors was such, in my opinion, as to constitute in the final analysis a violation of Article 3 of the Convention. And I would have reached the same conclusion if the victim had in the end survived; the emotion aroused by her death must not be allowed to distort the assessment of her detention and conditions of treatment as such.