APPEAL BY JAMES MCDOWALL AGAINST G4S CARE AND JUSTICE SERVICES (UK) LIMITED
SHERIFFDOM OF LOTHIAN AND BORDERS
[2016] SC EDIN 11
A116/14
JUDGMENT OF SHERIFF PRINCIPAL MHAIRI M STEPHEN QC
In the appeal by
JAMES McDOWALL
Pursuer and Respondent;
Against
G4S CARE AND JUSTICE SERVICES (UK) LIMITED
Defenders and Appellants:
Act: Kelly, Solicitor, Taylor and Kelly, Coatbridge
Alt: Duthie, Advocate instructed by Messrs Clyde & Co
EDINBURGH, 29 January 2016
The Sheriff Principal, having resumed consideration of the appeal, allows the appeal, recalls the sheriff's decision of 5 May 2015; repels the pursuer's third plea in law; allows the parties, before answer, a proof on their respective averments and remaining pleas in law; thereafter remits the cause to the sheriff to proceed as accords; certifies the appeal as suitable for the employment of junior counsel and finds the pursuer liable to the defenders in the expenses of the appeal, as an assisted person; allows an account thereof to be lodged and once lodged remits same to the Auditor of Court to tax and to report
NOTE:
1. In this action the pursuer seeks damages of £10,000 from G4S Care and Justice Services (UK) Limited who have responsibility for escorting prisoners to and from court and other places pursuant to contractual obligations with the Scottish Ministers (as representing Scottish Prison Service (SPS)).
2. The pursuer was a prisoner at HMP Addiewell in 2013. In the course of that year he required to attend three separate out-patient appointments at hospitals in Edinburgh and Livingston during March, July and August. The defenders had contractual responsibility for collecting the pursuer from Addiewell Prison, escorting him to the out-patient appointment and returning him to prison. Prisoner custody officers employed by the defenders accompanied the pursuer and remained with him at all times except, according to the defenders' averments, when the pursuer underwent CT scanning at which point he was unrestrained but observed.
3. The pleadings indicate that there is a measure of agreement as to the nature of the restraint used whilst the pursuer attended hospital. The pursuer was double cuffed. In other words, the pursuer’s wrists were handcuffed together in front of his body and he was also handcuffed to a prisoner custody officer by means of an escort chain. As is normal for anyone attending an out-patient appointment the pursuer required to wait in a public waiting area before being called for examination or testing. The appellants' answers give some specification of the time spent at hospital on each occasion including time spent in the waiting area. These averments are not, however, admitted.
4. The pursuer seeks declarator that the use of such restraint by the defenders on these occasions was incompatible with the pursuer's rights under Articles 3 and 8 of the European Convention on Human Rights. Following debate the sheriff repelled the defenders' first four pleas in law and sustained the first plea in law for the pursuer; granted declarator in terms of Crave 1 and reserved the quantum of damages for proof as to just satisfaction. The defenders and appellants appeal the sheriff's decision on the four grounds stated in the note of appeal no 18 of process. No interlocutor has been pronounced by the sheriff giving effect to his decision dated 5 May 2015. Parties were content to treat the sheriff's decision as one which sustained the pursuer's first and third pleas in law granting decree in terms of the pursuer's first crave in the initial writ, reserving the remaining pleas and allowing proof on quantum.
5. Parties were agreed that, whatever the outcome of the appeal, there required to be a proof at large on the issue of "just satisfaction" and, if appropriate, the quantum of damages. Accordingly, the issue for proof following the sheriff's decision is not simply one of quantum. Parties are at one in highlighting the need for evidence to be led on the parties' respective averments as to the merits on just satisfaction.
6. The absence of an interlocutor clearly poses some difficulties. The sheriff comes to his conclusion in the final paragraph of his decision. There is no discussion about the need to have proof as to remedy before any question of quantum is determined. This throws into stark relief the underlying question on appeal which is – was the sheriff entitled to find that the pursuer's averments were sufficiently admitted and that they supported declarator of incompatibility with his rights under both Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR)? The sheriff in effect granted summary decree on Crave 1. Can the law be stated with precision and confidence without a determination into the facts which are disputed? Is a minimum level of security necessary when escorting convicted prisoners to hospital and can the measures adopted be justified ex post facto? According to the appellant this appeal begins with a straightforward question of pleading applying Jamieson v Jamieson 1952 SC (HL) 44 and the sheriff went too far too fast in denying the appellants proof of their averments on all craves. On the other hand, the pursuer argued that the sheriff was entitled to find that the appellants' treatment of the pursuer amounted to a breach of his convention rights. They adopted a blanket policy which they were mandated to implement in terms of the standard operating procedure governing the movement of prisoners to and from hospital as part of the contract between the appellants and the third party Scottish Prison Service (SPS). Accordingly, the pursuer argued that the disputed averments were of no assistance to the defenders as their averments were essentially self-contradictory given that they sought ex post facto to justify that blanket policy with reference to the facts of the case. The sheriff was therefore correct to ignore the disputed averments and find that the appellants were unable to succeed in resisting declarator standing their averments which fail to state in what way the interference with the pursuer's Article 8 rights was proportionate to the risk.
Appellant's submissions
7. The first ground of appeal is the general ground that the sheriff erred in granting declarator that the use of restraint on the dates referred to was incompatible with the pursuer's rights under Articles 3 and 8 of the ECHR. Secondly, the sheriff erred in excluding from probation the defenders' averments in Answer 5 which set out the standard operating procedure for the treatment of prisoners whilst attending hospital or medical appointments, and which differentiates between secure and insecure areas. The level of restraint depends upon whether the prisoner is to be in a secure or insecure area. Special provisions apply if a risk assessment suggests otherwise or the prisoner is female and pregnant. The defenders are provided with the prisoner escort record which records amongst other things the risk factors relating to the prisoner including his convictions and other relevant propensities. Thirdly, the sheriff having accepted that the use of restraint was reasonable erred in granting declarator and erred in expressing a view, absent averment or evidence, that there would be a lesser form of restraint "which would have been less obvious to the public, less intrusive for the pursuer yet retained a necessary level of security befitting a long term prisoner." The sheriff then failed to address what that level of restraint might be and whether that or indeed the actual measure of restraint attained the necessary level of severity to constitute a breach of Article 3 of the ECHR. It was argued that the sheriff fell into error by addressing that question at all far less without evidence. Fourthly, the sheriff erred in holding that the conduct or restraint attained such a level of severity as to amount to a breach of Article 3 or indeed Article 8. Assessment of that depends on the circumstances of the case. The averments, such as are admitted, do not amount to a breach of Article 3 or engage Article 8. That assessment depends on all the circumstances of the case and proof before answer ought to have been allowed. Whether or not there has been a breach of either Article 3 or 8 depends upon the full facts and circumstances. There are disputed issues of fact as to the effect of the restraint on the pursuer and in any event the sheriff failed to address the question of justification.
8. Mr Duthie for the appellants argued that there is no rule of law to the effect that the absence of an individualised risk assessment must lead to a finding of incompatibility with either Article 3 or 8 of the ECHR. Likewise, if a risk assessment had been prepared it would not necessarily avoid such a finding. Whether or not the use of restraint by the appellants was justified is a matter for evidence. Even if the use of restraints was disproportionate, a claimant's rights under Article 3 would only be infringed if the treatment complained of met the minimum level of severity. In order to determine whether that level is achieved and it was submitted it was a high test, it was necessary to have regard to the whole circumstances of the case.
9. The appellant had in effect three propositions:
(1) In the circumstances averred, as a matter of fact, the restraints on the pursuer during hospital visits were reasonable, necessary and justified.
(2) Esto the restraints adopted were not reasonable, necessary and justified they did not attain the necessary level of severity so as to constitute a breach of Article 3 ECHR.
(3) Whether the use of restraint on the pursuer during hospital visits was reasonable, necessary and justified and whether there has been a breach of the pursuer's said convention rights can only be properly determined after evidence.
10. The court ought to consider whether or not the restraint was justified and proportionate having regard to the facts and circumstances relating to the pursuer; the hospital visits and security. The issue for the court is not whether the appellant's decision making process was satisfactory.
11. Mr Duthie referred to the disputed averments in condescendence and answers 3, 4 and 5 which are central to the case. In particular, the appellants' averments in answers 3 and 4 with regard to the time spent in hospital and the removing of restraints during CT scanning are not admitted. The appellant refers to the risk assessment carried out by the private operators of HMP Addiewell (Sodexo). Answer 5 narrates factors relating to the pursuer which state inter alia:-
"The pursuer was a prisoner in a secure prison. He was noted to pose a risk of violence, suicide or self-harm and to have drug/alcohol issues. He was also noted to present a risk of suicide or self-harm and to have a psychiatric condition. At the time of the escorts the pursuer was in prison serving a nine year sentence for attempted murder. He was remanded on 23 June 2008 and sentenced on 15 May 2009. He has convictions for assault to severe injury and permanent disfigurement. According to security and intelligence information held by Sodexo the pursuer has a history of violence and drug smuggling and use within the prison. He has been involved in fights with other inmates. He was observed taking unauthorised drugs passed to him by visitors. Unauthorised drugs were also found in his possession or in packages sent to him at the prison."
The answers also describe the form of restraint and its purpose, namely, "to ensure the safe and secure escorting of a prisoner during a hospital visit. It is not intended to degrade or humiliate the prisoner. A hospital is not a secure building." The appellants offer to prove that "It was reasonable, necessary and proportionate that the pursuer was restrained during his escorts to hospital given the risks he posed, the brief period of time for which he was restrained and his state of health." The appellants accept that no individualised risk assessment beyond the prisoner escort record was undertaken but conclude "Had an individualised risk assessment as to the level of restraint been carried out it would have been reasonable for the pursuer to have been restrained." It was submitted that the appellant is entitled to proof of those averments. Having regard to Jamieson v Jamieson 1952 SC (HL) 44 it cannot be said that the defender's case must necessarily fail even if the defender proves all that it offers to prove.
12. Mr Duthie relied on the dicta of Lord Bingham in R(SB) v Governors of Denbigh High School [2007] 1AC 100 and Lady Hale in Belfast City Council v Miss Behavin' Limited [2007] 1 WLR 1420.
13. The sheriff had fallen into error in considering that there was a lesser form of restraint available or possible without evidence of that and in the absence of averments to that effect. There is no proper basis for the sheriff making such a finding. In any event the sheriff, having formed the view that there might have been a lesser form of restraint available erred in failing to address whether or not the difference between the measure of restraint which he considered was acceptable and the actual measure of restraint adopted attained the necessary level of severity to constitute a breach of Article 3. Even if he had addressed himself to that proposition he could not answer that question without evidence.
14. There have been numerous European cases on the issue of handcuffing. Mr Duthie referred me to Mouisel v France (2004) 38 EHRR 34 particularly paragraph [37]; R (Faizovas) v Secretary of State for Justice [2009] EWCA civ 373 at para [27]; R (Graham) v Secretary of State for the Home Department [2007] EWHC 2940 [Admin] at para 2. Successive decisions of the European Court of Human Rights have taken the view that the use of restraint by handcuffing could be justified and even if the use of such restraint was disproportionate it did not follow that use of handcuffs leads to the conclusion that the minimum level of severity necessary to infringe a pursuer's rights under Article 3 is achieved. I was also referred to Kudla v Poland (2002) 35 EHRR 11; Raninen v Finland (1998) 26 EHRR 563 and R (Spinks) v Secretary of State for the Home Department [2005] EWCA civ 275 at [43] – [47]. Mr Duthie discussed and distinguished the authorities of Roberts v Chief Constable of the Cheshire Constabulary [1999] WLR 662 and R (Lumba) v Home Secretary [2012] 1AC 245. These cases involved wrongful or false detention or imprisonment.
15. The appellant argued that the pursuer's case at debate was based erroneously on the proposition that the absence of a risk assessment determined the question of compatibility. The sheriff erred in accepting that the defenders' conduct amounted to the application of a blanket policy which was not capable of being justified. The question is not whether the defenders seek to explain how they would have acted had they done a risk assessment but instead the defenders seek to lead evidence as to what did actually happen; the pursuer's propensities and that restraint was both reasonable and proportionate. The court should only determine whether restraint was reasonable and necessary on the evidence and if the court considers that restraint was not reasonable it must address whether, on the evidence before it, the treatment of the pursuer attained the necessary level of severity before the pursuer's Article 3 rights are breached. The sheriff therefore erred in repelling the defenders' averments and the appeal should be allowed.
Submissions by the respondent
16. Mr Kelly helpfully provided a written note of submissions which he supplemented by oral argument. In addition to the authorities in the Joint bundle, Mr Kelly handed up the recent decision of the UK Supreme Court in Shahid v Scottish Ministers [2015] UK SC 58; Roberts v Chief Constable of the Cheshire Constabulary [supra] an English Court of Appeal judgment and Greens, Petitioner 2011 SLT 549.
17. The respondent's motion is to refuse the appeal, adhere to the sheriff's interlocutor of 7 May 2015 by sustaining the first plea in law for the pursuer and remitting to the sheriff for proof at large on just satisfaction and, if appropriate, quantum.
18. The core of the respondent's submission is that the defenders are mandated to act in accordance with the standing operating procedures (known by the acronyms SOP or OPI) governing the movement of prisoners in terms of their contract with the Scottish Ministers on behalf of the Scottish Prison Service (SPS). The OPI imposed what was, in effect, a blanket policy permitting of no individualised risk assessment of a prisoner. That essentially is the flaw in the defences which render them both irrelevant and self-contradictory. The appellants' failure to address by way of risk assessment what was reasonable and proportionate to secure the pursuer's attendance at out-patient appointments means that their defence is irrelevant and of no effect. Read properly the defences simply state that they applied a blanket policy and now seek to justify the level of risk and restraint ex post facto. The sheriff correctly identified the test which is - had there been a violation of Article 3 of ECHR and separately Article 8 ECHR.
19. Mr Kelly reminded me that the pursuer's treatment need not attain a minimum level of severity to engage and breach Article 8 where the test, in effect, is proportionality and whether the interference may be justified. (See Raninen v Finland (1998) 26 EHRR 563 and Greens, Petitioner (supra)). The respondent contends that the pursuer's averments in support of the violation are sufficiently admitted that the sheriff was entitled to take the view that there had been a completed wrong - a violation of both articles incapable now of explanation or justification. The defenders did not and cannot satisfy the test set down by Lord Reed in Bank Mellat v Her Majesty's Treasury (No 2) [2013] UK SC 38, when determining whether the Treasury order directed to the Bank, which interfered with its commercial operations, bore a rational and proportionate relationship to its statutory purpose. I was referred to the four part test set down by Lord Reed at paragraph 74. Mr Kelly emphasised the difference between Articles 3 and 8 and that the submissions on behalf of the appellant confused the separate and distinct articles. Only Article 3 required there to be a minimum level of severity before the pursuer's rights are violated. There is no such requirement for Article 8 (the Right to Private Life) where the question is - "Is the interference necessary?" The test thereafter is essentially proportionality. It was Mr Kelly's submission that there are truly only two issues in this action. Firstly, whether the treatment of the pursuer amounted to a breach of his convention rights. The sheriff had answered that issue correctly by holding that his Article 3 and Article 8 rights had been breached and accordingly the sole question remaining for the court to determine is the second point - what, if anything, should constitute just satisfaction?
20. Mr Kelly rejected the appellants' submission that the pursuer's argument before the sheriff was essentially a challenge to the appellants' decision making instead of addressing the question of whether there had been a breach of convention rights. I was referred to the cases of Raninen; Mouisel; Roberts; Spinks and FGB Tarariyeva v Russia (2009) 48 EHRR 26; Kudla v Poland (2000) 35 EHRR 11; Salakhov and Anor v Ukraine (Tab 23 in the joint bundle of authorities). It was submitted that the jurisprudence of the European Court of Human Rights and the English Courts supports the proposition that the routine and indiscriminate handcuffing of the pursuer was disproportionate to the needs of security. The European Court of Human Rights had viewed critically any steps taken to interfere with Article 8 rights unless steps had been taken to reach a reasoned view about the security requirements of the individual prisoner. The handcuffing of the pursuer was not carried out with reference to any assessment of the risk he posed. Accordingly, the appellants cannot now argue that the application of double cuffs was proportionate. The appellants' blanket policy due to the OPI meant that no consideration of the level of risk had been undertaken. They had not assessed whether less intrusive or less obvious restraint could have been used. The appellant had simply applied the same level of restraint to each prisoner. Accordingly, attributing to the prison population as a whole the same risk of escape or violence is indicative of a failure to take into account individual factors and the pursuer's circumstances and is evidence of a lack of proportionality.
21. I was referred to the dicta of Lord Reed in Bank Mellat v HM Treasury (Liberty Intervening) (Nos 1 and 2) [2013] UKSC 38 and in the recent Supreme Court decision of Shahid v Scottish Ministers [2015] UKSC 58. The appellants’ failure to conduct a risk assessment means that they cannot meet the four factors set down by Lord Reed in the Bank Mellat case as to proportionality. These are:-
1. Whether the objective of the measure is sufficiently important to justify the limitation of the protected right.
2. Whether the measure is rationally connected to the objective.
3. Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
4. Whether balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
Accordingly, although the appellants may show that the measure pursues a legitimate aim it would be impossible for them to satisfy the remaining tests in the absence of a risk assessment. They have clearly not applied their minds to whether a less intrusive measure may have been adopted and therefore they would also fail to establish that the interference struck a fair balance as suggested in step four of the proportionality assessment. The appellants cannot succeed in their answer to the Article 8 case by seeking to justify the measure as proportionate.
22. Accordingly, the sheriff correctly identified the test and was entitled to make declarator in favour of the pursuer in terms of Crave 1. The appeal should be refused.
The European Convention on Human Rights (ECHR)
23. Article 3 of the ECHR provides:-
"No-one shall be subjected to torture or to inhumane or degrading treatment or punishment."
24. Article 8 – ECHR provides:-
"Article 8 – Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Discussion
25. It can readily be seen that Article 3 is a prohibition on torture, inhumane or degrading treatment or punishment. However in order to fall within the scope of Article 3 the treatment must attain a minimum level of severity the assessment of which usually depends on all the circumstances of the case. The court is also entitled to have regard to whether the object of the treatment is to degrade. The European Court of Human Rights (ECtHR) has considered whether treatment may be considered degrading and also the assessment of a minimum level of severity. It is necessary that both aspects are satisfied before there may be an infringement or violation of an Article 3 right. Treatment has been held to be degrading where it aroused in the victim feelings of fear, anguish and inferiority beyond that which might be expected to follow on imprisonment. The ECtHR has considered handcuffing of prisoners in the context of medical treatment. I will return to some of these cases. It has been held that the handcuffing in public of a prisoner is not per se so serious a measure as to amount to degrading treatment within the meaning of Article 3.
26. Article 8 on the other hand involves the broad concept of private life and consideration of Article 8 arises even if there has been no breach of Article 3 (Lady Dorrian in Greens' Petitioner 2011 SLT 549). Any interference with a right guaranteed by Article 8 must be in accordance with the law and must pursue a legitimate aim as set out in paragraph 2 of the Article, and be necessary in a democratic society. Any interference requires to be proportionate to that legitimate aim. There is no requirement to attain any minimum level of severity when considering an interference with an Article 8 right.
27. I was also referred to decisions of the ECtHR and English judgments. They are, of necessity, specific as to their own facts and circumstances and indeed emphasise repeatedly the need to have regard to the facts and circumstances of each application.
28. The case of Kudla v Poland (supra) relates to a prisoner detained pre-trial who complained that he was deprived of psychiatric treatment in detention violating his Article 3 rights. The ECtHR decided at para 91:-
"91 However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case such as the nature and the context of the treatment, the manner and the method of its execution its duration its physical or mental effects and in some instances the sex, age and state of health of the victims."
This is of importance as the assessment of whether the pursuer's treatment reaches this minimum level of severity depends upon all of the circumstances. That would suggest that the court requires to hear evidence at large but especially on the disputed facts and issues. The ECtHR in the following para stated:-
"92. The court has considered treatment to be 'inhuman' because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be 'degrading' because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. On the other hand, the court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment"
The case of Kudla relates to pre-trial detention and therefore Mr Kudla was entitled to the presumption of innocence. The court decided that his ECHR rights had been violated by virtue of the delay in bringing him to trial but not as regards the lack of hospital treatment.
29. The case of Mouisel v France (supra) relates to a convicted prisoner serving 15 years for armed robbery. He suffered from leukaemia. During imprisonment his condition worsened and he required chemotherapy. He was chained up during journeys to the hospital and chained to the bed during chemotherapy by his feet and one wrist. He decided to stop treatment due to this restraint and the guards' behaviour towards him. There was a medical report which clearly advised that he should receive treatment at a specialist clinic. It was considered that this did amount to a violation of Article 3 but the circumstances are clearly different from the current case. Mr Mouisel had a serious illness which was deteriorating. He required invasive treatment by way of chemotherapy. The restraint and the behaviour of the authorities led to his cessation of treatment. Paragraph 47 in this case is of some importance.
"47 The court reiterates that hand-cuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage. In the instant case, having regard to the applicant's health, to the fact he was being taken to the hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness, the court considers that the use of hand-cuffs was disproportionate to the needs of security. As regards the danger presented by the applicant, and notwithstanding his criminal record, the court notes the absence of any previous conduct or other evidence giving serious grounds to fear that there was a significant danger of his absconding or resorting to violence."
30. The case of Faizovas v Secretary of State for Justice (supra) involved a sexual offender who had been sentenced to 42 months imprisonment. He had pancreatic cancer pre-conviction and when he was in prison his condition deteriorated. He had a very short life expectancy numbered in months. Although there may be certain similarities to the current case Mr Faizovas was clearly seriously unwell and indeed died soon after the court's decision. He was attending out-patient appointments for chemotherapy. In that respect only it is closer to this case however there is no identifiable illness present in this case. Dyson L.J. considered the argument that Mr Faizovas' Article 3 rights had been infringed. He states at para 27:
"In order to determine whether treatment reached the high minimum threshold required to engage Article 3, it is necessary to have regard to all the circumstances of the case: see Mouisel paragraph 37. In the present case, the treatment complained of, hand-cuffing, took place over relatively short periods of time whilst the claimant was outside prison. The hand-cuffing caused no physical or mental effect. Although suffering from a very serious illness, the claimant was not particularly frail, and apart from one point of disputed evidence, there is no suggestion that he was significantly impeded by the hand-cuffs. The purpose of the hand-cuffing was not to cause the claimant to suffer inhuman or degrading treatment or to humiliate him or to cause him distress. There is no suggestion that the prison officers acted other than in an appropriate and sympathetic manner throughout."
Lord Justice Dyson went on to repeat the dicta in Mouisel to the effect that handcuffing does not normally give rise to an issue under Article 3. Risk assessments had been made in the Faizovas case. The assessment is very much a matter for the prison officials.
31. In this appeal there is no averment that the pursuer suffered from any illness or was in poor health. The averments relate to three hospital visits for out-patient diagnostic testing not for medical treatment. In respect of the crave that the pursuer's rights had been breached there are no averments of injury, anguish, fear, degradation or inferiority. The only averment (in Condescendence 6) is "the pursuer was humiliated and degrading (sic) at being restrained in the aforementioned manner." In this case there is a third party, namely the appellants, who by virtue of the contract between SPS and the appellants provide the escort service whereas in the Faizovas case the defendant was the Secretary of State for Justice in respect of the prison service. In this case the appellants rely on a risk assessment carried out by Addiewell Prison and their private operators Sodexo. No specific risk assessment was carried out by the appellants.
32. In Graham v Secretary of State for the Home Department (supra) Mitting J gave the judgment of the High Court. In Graham the claimant was suffering from Hodgkin's lymphoma. He was admitted to hospital as an emergency for in-patient treatment. At that time there was absolutely no question of the claimant having the ability to abscond from the hospital independently. He was escorted to the hospital and handcuffed to two officers. When his condition improved after treatment he had to attend out-patient sessions for further chemotherapy and on these occasions he was handcuffed. His health was much improved. Mr Graham was considered a fairly minor drug dealer who posed no risk to violence to members of the public. Mitting J, said:-
"27. The propositions that I draw from the case law is that the unnecessary use of hand-cuffs on a prisoner who is receiving treatment, whether as an in-patient or as an out-patient, at a civilian hospital is capable of infringing Article 3 in two respects: either because it is inhumane or because it is degrading or both. The use of hand-cuffs to guard against an adequately founded risk of escape or of harm to the public in the event of escape does not infringe Article 3, absent perhaps particular considerations arising from the medical condition of a prisoner. A dying prisoner properly assessed as posing a risk of escape when fit, and a risk of violence to the public were he to escape, could properly contend that hand-cuffing him during his dying hours was nonetheless an infringement of his right not to be treated inhumanely or in a degrading manner.
28. Assessment is very much a matter for the prison officials who must make the assessment. Their assessment will ordinarily and properly include the following: the crime for which the prisoner has been sentenced; his previous history of offending; his category as a prisoner; his prison record; his fitness; and in appropriate cases, information about the ability or willingness of others to facilitate his escape, and no doubt many other factors. Prison records cannot be expected to be perfectly adequate. As in the case of Mr Graham, a prison official can properly act upon a PNC record which is itself inaccurate where there is no ground to believe that it is. Records of prison discipline at one prison many not always be accurately transposed in the records of the receiving prison. Errors of this kind will not make unlawful a decision based upon them or cause such a decision to infringe the Article 3 rights of the prisoner."
As I have indicated [para 11 above] the appellants in Answer 5 refer to and rely on the risk assessment carried out by the Prison authorities (here Sodexo). The appellants narrate the risk factors relating to the pursuer all as stated in the prisoner escort record (PER). That assessment covers inter alia the factors mentioned by Mitting J above.
33. Accordingly, although the use of handcuffs in certain circumstances is capable of breaching Article 3 this very much depends on the circumstances of the case; of the prisoner and of his treatment. The period or duration of his visits to hospital may also be of importance. Of course, the respondent argues that consideration of previous decisions is only of limited assistance. The nub of the respondent's argument is that the lack of a risk assessment discloses a failure to consider what is necessary and proportionate as regards Article 8 but also Article 3. In essence the respondent's argument is that the defenders' failure to make any assessment of the risk posed by the pursuer and therefore what measures were necessary to prevent escape or to prevent risk to the public, rendered their approach unlawful irrespective of what proof of fact may disclose. The unlawfulness of their acting was such that they could not and should not be permitted to attempt to justify their behaviour by saying what they would have done had they acted lawfully. Had they acted lawfully they would have considered risk factors and implemented a bespoke operational plan for escorting the pursuer to hospital proportionate to the location and the level of risk he posed. In that regard Mr Kelly relied upon a number of authorities in particular Lumba v Home Secretary (supra) and Roberts (supra). Lumba's case involved unlawful detention based upon an unpublished policy of blanket detention which was inconsistent with the published policy relating to foreign national prisoners. Roberts case involved the unlawful detention of an individual arrested by the police. His continued detention without review was in direct contravention of the statutory power under which he was detained. Even if there were circumstances which justified his continued detention these could not render lawful his false imprisonment. These authorities involve wrongful imprisonment or detention. They consider whether the defendants had acted lawfully and within their statutory powers or whether the powers under which they purported to detain were themselves lawful. I agree with counsel for the appellants that these cases fall to be distinguished, or rather, they are dealing with a quite different issue. In this case the question is whether the appellants' use of restraint constitutes interference with private life which is neither necessary or is disproportionate to the aim of securing the prisoner and protecting members of the public. Secondly, the question is whether the use of restraint violates the pursuer's Article 3 rights and, importantly, attains the minimum level of severity. Accordingly, the questions of law in this case are quite different and do not involve consideration of whether the appellants exceeded their statutory powers and obligations. In any event, in Lumba Lord Dyson's Opinion at paragraph 62 emphasises that they are dealing with decision making vitiated by public law error. It cannot be said that there has been fundamental error on the part of the appellants in this case.
34. The respondent's argument means that a risk assessment is necessary in order to avoid a finding that a public body (and therefore the appellants who are contracted to a public body) acted in a manner which is disproportionate. The respondent's argument focusses on the reasonableness and lawfulness of the appellants' decision making rather than what actually happened. The series of European and English decisions to which I have referred repeat the need to make decisions as to ECHR rights against the full context of the case. The correct approach, in my view, is to adopt the reasoning of the House of Lords in R v Governors of Denbigh High School (supra). That case involved Article 9 of the ECHR. The issue was whether the school had interfered with the claimant's right to manifest her religious belief by wearing the Hijab to school. The dicta of Lord Bingham of Cornhill and Lord Hoffman are of particular significance. At paragraph 29 Lord Bingham considered the purpose of the Human Rights Act 1998 and the ECtHR. In that context he stated:- "But the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision making process, but on whether, in the case under consideration the applicant's Convention rights have been violated". And at para 31 emphasised:- "what matters in any case is the practical outcome, not the quality of the decision making process that led to it." Lord Hoffman in the same case at paragraph 68 emphasised:-
"In domestic judicial review, the court is usually concerned with whether the decision maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But Article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under Article 9(2)? The fact that the decision maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because a decision maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows."
35. The respondent's argument particularly as regards the Article 8 case, focussed significantly on the test set down by Lord Reed in Bank Mellat and the four part test as to whether or not a measure is proportionate to a legitimate aim (see para 21). That is a matter for the court to judge objectively. Essentially the respondent's argument is that the appellants by virtue of not having conducted a risk assessment cannot satisfy parts 3 and 4 of the test at all and arguably cannot satisfy part 2 - namely, whether the measure is rationally connected to the objective. The Bank Mellat case, of course, considered an order made by the Treasury under statutory powers. The court considered their decision making in the context of their statutory powers. The decision in that case is authoritative especially in judicial review and provides an analysis of the exercise of powers and decision making by public authorities. It is not determinative of the question of law in this case. The four part test in the Bank Mellat case is subject to the proviso that the intensity with which the test is applied will depend on the context. That of necessity involves consideration of the facts and circumstances. I do not consider that the Bank Mellat case has the effect which the respondent contends for at this stage in these proceedings. This appeal involves consideration of the pleadings and whether the averments are sufficiently admitted and the law sufficiently precise to decide the action without evidence and without taking account of the facts and circumstances. The case of Shahid was also mentioned but not explored in any detail before me. Shahid involved prisoner segregation. The appellant claimed a violation of Article 3 and Article 8 rights. The appellant's case under Article 3 was refused but there had been a violation of his Article 8 rights. Lord Reed draws our attention to the observation of Lord Steyn in Roberts [2005] UKHL 45 (para 84) that even the most wicked of men are entitled to justice at the hands of the State. I find that Shahid does not assist in determining this appeal which is essentially an analysis of pleadings.
36. In this case the defenders and appellants offer justification for the use of handcuffs. In my view, it is necessary to allow the defenders an opportunity of demonstrating that the use of handcuffs as the form of restraint when the pursuer attended out-patient appointments was justified. To answer the question - Was the practical outcome justified and proportionate?
37. Accordingly, it appears that the sheriff fell into error in two respects. Firstly, by accepting that the lack of what has been described as "an individualised risk assessment" was fatal to the appellant's case. At paragraph [128] the sheriff states: "There is in the defender's pleadings the obvious flaw that no risk assessment was carried out as to the nature and level of the security required for each visit". The English judicial review cases of Spinks and FGP are not authority for the proposition that the absence of a risk assessment is fatal to the Secretary of State's defence to the human rights case. What is particularly clear from these cases is that they depend very much on their own facts which in the case of Mr Spinks (who was a life prisoner) involved a very serious terminal illness. He challenged the Home Secretary's decision not to release him on compassionate grounds. The appeal also involved an argument that his Article 3 rights had been breached by him being restrained during treatment at hospital appointments. A risk assessment had been carried out. The Appeal Court agreed with the Court at First Instance that the use of handcuffs by way of restraint on the ward and at hospital had not reached the level of severity required for Article 3. Buxton LJ considered Article 3 and decided that the treatment of Mr Spinks had not reached the level of severity sufficient to amount to a breach of Article 3. Accordingly, in this case an over-cautious approach or a blanket policy may make the appellant's defence more problematic and open to close scrutiny in the context of the facts they offer to prove. It is not, however, such a fundamental error which requires the court to deprive the appellants of their entitlement to proof - firstly, as to whether there has been a violation of either article and in respect of Article 3 whether any violation has attained the minimum level of severity. Secondly, the sheriff fell into error by failing to notice that the case law relating to Article 3 clearly emphasises that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. In Mouisel this was stated in the following way:-
"The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3."
Buxton LJ in Spinks at paragraph 45 considered Article 3 and the minimum severity test in the following terms:
"Sympathetic though one is to the situation in which Mr Spinks finds himself we do have to remember that Article 3 is an important article not least because it forbids conduct of a serious kind on the part of the State, a serious and wholly unacceptable kind. That is why the obligation under Article 3, in contrast with the obligation under some other articles, is absolute; and the reverse side of that absolute obligation is that a comparatively high standard has to be established before the article can be shown to be broken."
38. This case raises some important questions of law which in my opinion cannot properly or adequately be dealt with without proof of the facts and circumstances. For the reasons stated the absence of a risk assessment is not, in my view, fatal to the appellant's case. It depends on how the facts emerge after the evidence is given. It cannot be said at this stage that the court must find that the defenders violated the pursuer's Article 3 rights or interfered unnecessarily and disproportionately with his Article 8 rights. The court may find that these rights were breached but there requires to be an inquiry for that purpose and there should be a proof before answer. The sheriff has not given reasons why the disputed averments in Condescendence and Answer 4 can be ignored (other than he was impressed by the lack of risk assessment argument). It appears that the averments in Answer 2 offer to prove that the appellants' approach to restraint was not rigid but one which related to medical requirements. There may well be a question at proof as to whether the PER is sufficient to inform the appellants' approach to restraint in the absence of a risk assessment carried out by the appellants independently. I will allow the appeal and remit the matter for proof before answer.
39. It is necessary to mention the procedural irregularities which have arisen in the course of this action. An interlocutor is necessary to give effect to the decision made by the sheriff following debate. This is important for a number of reasons firstly, as I have said, to give effect to the sheriff's decision but also for the purpose of appeal and certainty. The interlocutor should record which pleas in law are sustained or repelled and provide a clear audit trail of the orders made by the court and the nature of the restricted proof allowed. If, as was suggested, the third plea in law for the pursuer was sustained the appellants would have been hamstrung at any proof on just satisfaction or indeed quantum. Parties are agreed that the general rule of expenses should apply. I certify the case as suitable for the employment of junior counsel. The pursuer will be liable to the appellants, as an assisted person, in the expenses of the appeal and in the expenses of the debate before the sheriff.