MR EASDALE CAMPBELL (AP) AGAINST (FIRST) SCOTTISH MINISTERS; (SECOND) SEDEXO LIMITED; (THIRD) TASCO SERVICES LTD; AND (FOURTH) G4S CARE AND JUSTICE SERVICES UK LTD
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 35
A486/15
OPINION OF LADY WISE
In the cause
MR EASDALE CAMPBELL (AP)
Pursuer
against
(FIRST) SCOTTISH MINISTERS; (SECOND) SEDEXO LIMITED; (THIRD) TASCO SERVICES LTD; and (FOURTH) G4S CARE AND JUSTICE SERVICES UK LTD
Defenders
Pursuer: Leighton; Drummond Miller LLP
First Defenders: Johnston QC, Byrne; Scottish Government Legal Directorate
Second Defenders: Ross QC; DLA Piper Scotland LLP
Third Defenders: Crawford QC; Clyde & Co
Fourth Defenders: Duthie; Clyde & Co
3 March 2017
Introduction
[1] This is an action for declarator and damages. The pursuer was at the material time a prisoner within the Scottish prison estate. He was sentenced to 20 years imprisonment following conviction at Glasgow High Court in February 1996. He was released on licence on 11 November 2005 but was recalled to custody. He was released at his sentence end date of 11 December 2015. The present proceedings were initiated as a petition for judicial review in June 2013. The subject matter of the judicial review was the alleged illegality of the first defenders’ (then respondents) policy of hand-cuffing all prisoners when they were escorted out of the prison for medical appointments. During the course of these proceedings and in about April 2014 a new policy was adopted which provides for the individual assessment of risk posed by a prisoner and the imposition of restraints when they are being escorted outside the prison estate in line with such an assessment.
[2] On 12 June 2015 the court ordered that the case be withdrawn from petition procedure and appointed it to proceed as an ordinary action. Amendment of the pleadings took place thereafter and the case as now pled seeks two declarators; first, that restraining the pursuer in handcuffs while he was in custody outwith prison at hospitals in Scotland was an unlawful infringement of his residual liberty and secondly, declarator that the defenders’ treatment of him was in breach of his rights in terms of Article 3 et separatim Article 8 of the European Convention on Human Rights (“ECHR”). The third conclusion seeks damages payable to the pursuer by the defenders jointly and severally of the sum of £60,000. All of the defenders sought to debate their preliminary pleas at the procedure roll hearing before me. The pursuer also sought to argue his preliminary plea to the relevancy of the defences and sought decree de plano.
[3] The arguments advanced on behalf of the defenders can be divided into two broad sections namely relevancy and specification arguments and time bar. The arguments on relevancy and specification can in turn be divided into questions about the correct public authority to be sued, the cases as pled on Article 3 ECHR and separatim Article 8 ECHR and the common law case. The second chapter relating to time bar can be divided into the statutory limitation argument and the third defender’s plea of mora taciturnity and acquiescence. While logically the time bar issues would normally come first, that was not the way in which the argument was presented to me and the relevancy and specification issues provide an insight into the factual matrix relevant to the time bar issue. Accordingly I will summarise the various arguments made at the hearing broadly in the order in which they were presented. I will turn last to the pursuer’s argument on his preliminary plea.
Relevancy
The Correct Public Authority
[4] Mr Johnston QC, in presenting the argument for the first defenders, accepted that the Scottish Ministers are a public authority and are obliged to act in accordance with the Human Rights Act 1998 and the Scotland Act 1988. Further, the general superintendence of prisons is vested in them by virtue of the Prisons (Scotland) Act 1989 (section 3) and the Criminal Justice and Public Order Act 1994 section 106(2)(a)(ii). Notwithstanding that general responsibility, the first defenders were not involved at all in escorting the pursuer outside any prison. The second defenders who operate the prison in which the pursuer was detained at the material time, are the operators of that prison. The fourth defenders were involved in escorting the pursuer on certain occasions to hospital for appointments. Both the second and fourth defenders admit on record that they are public authorities for the purposes of the Human Rights Act 1998. The third defenders acquired the assets and liabilities of Reliance from 2012. They and their predecessor were involved in some escorting of the pursuer to hospital. They make no admission about being a public authority for this purpose. Mr Johnston accepted for the purposes of the present action that the existence of contracts between the first defenders the other defenders did not relieve them of their general responsibility for the prison estate or of their obligations to act in accordance with the 1998 Act. However, as the first defenders had no control over the pursuer during the acts complained of in these proceedings, nor were they informed at an operational level of the acts or omissions of which the pursuer complains, they are not a correctly convened defender. The actions now complained of depended upon the judgement, decision making and actions of the public authorities which had control of the pursuer, namely the second, third and fourth defenders respectively. For the purposes of the alleged breach of the pursuer’s convention rights, section 6 of the 1998 Act ought to be interpreted as rendering accountable the public authorities (as defined by section 6(3)(b) of the Act) which had control over the pursuer and which performed the acts that allegedly constituted a breach of the pursuer’s convention rights. That interpretation would ensure adequately that a public authority is accountable to account to him for any breach of convention rights established by him.
[5] Mr Johnston developed this argument by attacking the relevancy of the pursuer’s averments about the first defenders’ policies now that the pursuer’s claim had transmuted into an ordinary action. Attention was drawn to Article 27 of condescendence and averments about the policies and practices implemented by the defenders that were said to breach Article 3 ECHR. The complaint was that minimum levels of security were implemented without regard to the risks posed by the prisoner. In particular the policy of hand-cuffing nearly all prisoners without regard to the particular level of risk that they in fact posed is raised as an example of the alleged Article 3 breach. Mr Johnston argued that such averments have no place in what is now really an ordinary action for damages. All that mattered now that the case was an ordinary action is what happened to this particular prisoner and whether anyone acted in a way which breached his own human rights. Averments about the first defenders’ “overarching responsibility to prevent breaches of Article 3 in relation to all prisoners” were entirely irrelevant. A similar argument was presented in relation to the Article 8 ECHR case. The averments at Article 28 of condescendence again complain of the policies and practices of the defenders in relation to the security imposed on prisoners outwith prison. It should be understood that the issue in what is now a “just satisfaction” ECHR case is whether the pursuer is a victim as a result of a violation of his ECHR rights. The answer does not depend on any policy of defenders but an analysis of how the pursuer as an individual was treated. Reference was made in this context to Belfast City Council v Miss Behavin’ Ltd 2007 1 WLR 1420, paragraphs 12-15 and 23 of which supported the contention that action under section 7(1) of the 1998 Act could only be brought by a person who is actually a victim of an unlawful act. In Bank Mellat v Her Majesty’s Treasury [2014] AC 700, a statutory appeal, Lord Reed in the Supreme Court enunciated a four stage approach necessary to determine whether the measure complained of was proportionate. It is clear from what is said in that case that even in a public law context, the treatment of the pursuer by the defenders is still what matters. In essence, in so far as he relies on policy, the pursuer pleads no relevant case and all averments relating to the policy of the first defenders ought to be excised. Success in this argument would mean that no relevant case at all is pled against the first defenders as the action against them is only in relation to their policy. The pursuer accepts (Article 4, page 19 of the Closed Record) that the first defenders played no part in escorting him to hospital. Further, the pursuer admits (Article 14, page 55 of the Closed Record) that the guidance given by the first defenders to the Scottish Prison Service was to staff only. Finally, there was a curious admission and averment (Article 20, page 72) that the Scottish Ministers had not physically restrained the pursuer but “... they may nonetheless be responsible ...”. It was incumbent upon the pursuer to state the basis of any alleged responsibility on the part of the first defenders. In the absence of anything other than a general policy being relied on the first defenders should no longer be in the action as no unlawful act on their part towards the pursuer as an individual is claimed. In terms of sections 6 and 7 of the 1998 Act, the pursuer would require to show both an unlawful act by the public authority and that he as an individual was a victim of that unlawful act before he could succeed. Mr Johnston relied also on the case of FGP v Serco Plc and The Secretary of State for the Home Department [2012] EWHC 1 084. That was a judicial review case in England involving a similar issue about hand-cuffing prisoners. What it illustrates is how someone like the pursuer could properly have advanced a case against those responsible and those who set the guidance on that within judicial review proceedings. The contrast with this case is that, having abandoned the judicial review route, the pursuer ought to have deleted as irrelevant all of the averments relating to policy.
[6] Under reference to Ruddy v Chief Constable 2013 SC 126 Mr Johnston sought to argue that it could not be competent for the pursuer to seek a joint and several sum in damages against all of the defenders together. Unlike the situation in Ruddy this case includes a single conclusion for damages against all of the defenders despite the fact that each defender acted alone and the first defenders are in an entirely different position from the second to fourth defenders.
[7] In summary the pursuer has pled a mixture of judicial review grounds and averments relevant to an ordinary action and as a result has failed to plead a relevant case. No wrong against the pursuer committed by the first defenders has been identified. If other defenders have acted wrongly towards the pursuer there was no basis for the first defender be sued together with them. For these reasons alone the action should be dismissed against the first defenders.
[8] The second, third and fourth defenders adopted Mr Johnston’s submissions in so far as they related to the difficulty with the joint and several sum in damages being sought. None of them sought to argue that the first defenders should remain in the action but were effectively neutral in relation to the points that concerned the first defenders alone. Counsel for the pursuer, Mr Leighton on the other hand, submitted that the first defenders continued to be liable in this ordinary action for declarator and damages as having overall responsibility for the prison estate. He argued that the pursuer could still complain, relevantly, about the previous blanket policy on the part of the first defenders to handcuff all prisoners leaving prison to attend hospital appointments. While of course the first defenders have a legitimate aim of protecting the public by minimising any risk from such prisoners, the pursuer could still make a complaint about the lawfulness of the policy and proportionality. It was not correct to state that ECHR claims were not about procedure but about the merits. In Dickson v United Kingdom 46 EHRR 41 the Grand Chamber in Strasbourg had decided that a test that did not permit an appropriate assessment of proportionality breached the Convention. It did not matter whether the end result was potentially justifiable. The breach lay in the failure of the law to provide for a proportionality assessment. The pursuer continues to seek declarator as well as damages. He is entitled to pursue the matter of the blanket policy breaching ECHR. It did not matter that if things had been done properly the same result might have been arrived at. The fact that there was an inadequate system was a breach of the Convention by itself. It was not a matter of dispute that judicial review proceedings had been appropriate for so long as there was a blanket policy, but now that that policy had changed, the pursuer was entitled to seek “just satisfaction” in the form of declarator and damages.
[9] Mr Leighton submitted that the “Miss Behavin’” case did not assist with the issue to be decided. The pursuer’s argument is that his human rights were not placed on the scales at all. The policy was unlawful because there was no weighing up of whether it was required for this particular pursuer. The first defenders are responsible for the management of prisons and they cannot derogate from their Convention responsibilities through contract –Wos v Poland advocation number 22860/02, 1 March 2005. Further, there was House of Lords authority that to be effective, rights available to an individual have to be able to be enforced against the State. In YL v Birmingham City Council and Others [2007] UKHL 27 it was held that the core providers (in that case for the provision of care and accommodation) did not take on a public function for the purposes of ECHR. Mr Leighton accepted that there is no domestic authority on whether responsibility for the prison service is a delegable duty. However he submitted that if a strained interpretation was required one could read “act of public authority” in section 6 of the 1998 Act as including the Scottish Ministers in this context.
[10] So far as the use of a joint and several conclusion was concerned, Mr Leighton submitted that it was entirely appropriate for there to be a single conclusion against all the defenders. The pursuer’s feelings in relation to being put in handcuffs could not be separated between incidents that lasted for two hours and those that lasted for two days. It was a single injury that the pursuer had suffered. An analogy could be drawn with someone run over by a number of cars sequentially. The pursuer would be entitled to raise an action against them all.
The Article 3 and Article 8 ECHR Cases as Pled
[11] Senior counsel for the first defender submitted that even taking the pursuer’s pleadings at their highest, no violation of Article 3 could be established on a fair reading of those averments. For the use of handcuffs to breach Article 3 there must be degrading treatment more severe than pled. Accordingly the pursuer’s case must fail. Reliance was placed on the case of Mouisel v France (2004) 38 EHRR 34. That case involved a successful Article 3 claim by a prisoner who had been chained up during journeys from prison to hospital and claimed that during chemotherapy sessions he had to undertake, his feet were chained and one of his wrists was attached to the bed. The court in Strasbourg reiterated its previous position that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 ECHR. The assessment of the minimum level was relative and would depend on all the circumstances of the case such as the duration of the treatment, the physical and mental effects and in some cases the sex, age and health of the alleged victim. The material statements of the court were contained at paragraph 47 of the Judgment and are in the following terms:
“The court reiterates that hand-cuffing does not normally give rise to an issue under Art.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.”
While the facts in Mouisel militated against hand-cuffing because there was an absence of any previous conduct or other evidence giving serious grounds to fear that there was a danger of absconding, in this case the pursuer has absconded, has previous firearms convictions and a violent background. The concerns about the pursuer had all been noted in the escort records. Accordingly, there was enough on the undisputed factual background to conclude that the pursuer could not and had not stated a relevant case.
[12] In the case of Raninen v Finland (1997) 26 EHRR 563, an earlier Strasbourg decision, a prisoner had alleged that hand-cuffing him in public when he was being escorted to a military hospital breached his Article 3 ECHR rights. In that case, at paragraphs 55-58 the court had indicated that regard would be had to whether the object of punishment or treatment was to humiliate and debase the person concerned and whether, as far as the consequences were concerned, it adversely affected his or her personality in a manner incompatible with Article 3. The public nature of the punishment or treatment may be relevant but is not a decisive factor. This case represented the initial articulation from the court of the view that hand-cuffing did not normally give rise to an issue under Article 3 of the Convention where the measure had been imposed in connection with lawful arrest or detention and did not entail the use of force or public exposure exceeding what was reasonably considered necessary in the circumstances. Mr Raninen’s case failed because the court was not convinced that the hand-cuffing event in question had adversely affected his mental state. There was no support for a suggestion that a causal link existed between the impugned treatment and an undefined psychosocial problem diagnosed several months later. The case illustrated that a critical eye must be cast on a claim of this sort. In Raninen the Strasbourg court was not satisfied there was a violation of Article 3.
[13] Mr Johnston referred also to the recent decision in McDowall v G4S Care & Justice Services Ltd 2016 SLT (Sh Ct) 107. This was a decision of Sheriff Principal M M Stephen QC in a case where the pursuer brought an action for damages against G4S in relation to hand-cuffing him when he left prison to attend hospital without any risk assessment being carried out. While the decision was not of course binding authority it provided an interesting example, according to Mr Johnston, of an appropriately pled action for damages in this context. It was useful also for its consideration of the case of R (On the Application of Faizovas) v Secretary of State for Justice [2009} EWCA Civ 373. Sheriff Principal Stephen cited paragraph 27 of that case where Dyson LJ stated the following:
“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.”
That passage was part of a Judgment in which Lord Justice Dyson went on to reiterate the dicta in Mouisel to the effect that hand-cuffing does not normally give rise to an issue under Article 3. In McDowall the sheriff had erred in granting decree de plano rather than fixing a Proof Before Answer in a case where the defenders had offered justification for the use of hand-cuffs. In allowing the appeal the sheriff principal noted that there were no averments of injury, anguish, fear, degradation or inferiority on the part of the pursuer. Mr Johnston submitted that in this case the pursuer’s averments did not go far enough to plead a relevant case. There was no averment that the intention was to debase or humiliate the pursuer. He was not elderly or frail at the material time, having been between 52 and 56 years old. The was no causal link between the treatment and any condition suffered. There were no averments allowing for a conclusion that the minimal level of severity required for Article 3 was attained. All the pursuer says (at page 94 of the Closed Record) is that “the restraint of the pursuer has interfered with his physical and psychiatric integrity” and (at page 103) that “... the pursuer has felt embarrassed and distressed”. There is another general averment that the presence of a guard during medical examination and the procedure of double hand-cuffing “... humiliated and degraded the pursuer” (page 48). Mr Johnston submitted that these averments did not go far enough for a relevant case to be pled.
[14] So far as Article 8 was concerned the pursuer’s case surrounded the medical treatment received by him and the use of toilets and showers. Mr Johnston left it to counsel for the other defenders to address the specific relevancy of those averments. However he made the submission that even at their highest the pursuer’s pleadings disclosed no relevant case under Article 8. It was accepted that prisoners enjoy certain Article 8 rights in so far as compatible with the deprivation of liberty – Raninen v Finland at paragraphs 62 and 63. However Mr Johnston contended that, absent averments of physical or mental effect, the Article 8 case was irrelevant just as the Article 3 case was. Averments of embarrassment and distress and some sort of general interference with physical integrity were insufficient. Just as the European Court did in Raninen this court should scrutinise the averments and see that no medical evidence or detail of effect is offered. Given the context of imprisonment and the general legitimacy of restraint, the pursuer had averred nothing to constitute an unlawful interference with his private life.
[15] On an esto basis, Mr Johnston argued that if the pursuer was seen to have pled a relevant Article 8 case then Article 8(2) ECHR would come into play and the justification could be seen to be made out. For the reasons already set out in relation to Article 3, the hand-cuffing of the pursuer was reasonable and proportionate in all the circumstances. The averments relative to the alleged Article 8 breach could be found within Articles 28-30 of the closed Record. The pursuer had a particular complaint about being exposed to “public view and curiosity” and claimed that this engaged Article 8. Reference was made to the relevant prison rules, the Prisons and Young Offenders Institutions (Scotland) Rules 2011 SSI 2011 No 331. Rule 99(1) provides that where a prisoner is taken in legal custody to any place outside a prison, he must be kept under the control of an officer or constable, must not be exposed to public view so far is reasonably practicable and must be protected so far is reasonably practicable from insult, curiosity and publicity in any form. Having cited that rule in the pleadings the pursuer then makes a number of complaints about privacy from other members of the public when waiting for treatment and a claim that the escorts should have parked closer to the hospital or deposited the pursuer if they had to park further away. It was submitted that the 2011 Rules, if relevant, provided a clear framework such that the “in accordance with law” aspect of Article (2) was met. The purpose of Article 8 ECHR was protection against arbitrary interference – Munjaz v United Kingdom [2012] EHRR 1704. The context of the pursuer’s situation was very different from that of a police search; in reality what took place was an operational decision about how to protect both the prisoner and the public. The pursuer is not in a position to complain that there is anything wrong with the prison rules and he does not seek to do so. Accordingly the attack was not well founded and even if a prison officer or escort did something wrong it would not affect the lawfulness in ECHR terms. In any event, even on the basis of the undisputed statements in the pleadings there was a clear justification for such interference with the pursuer’s Article 8 rights as there was. The legitimate purpose was the prevention of disorder and crime and the safety of the public. Given the admissions made by the pursuer it can easily be inferred that everything that took place was proportionate in pursuit of that aim. In particular the starting point was the criminal convictions of the pursuer and his disciplinary record which illustrated he had attempted to abscond. Hospitals were not secure environments and it was obviously legitimate to prevent an escape from custody. The pursuer makes no averments about security at the hospital. If he claimed the hospital was itself secure there might just be an argument on proportionality but he does not. Finally, there were no averments in relation to the alleged effect on the pursuer’s health and well-being to tip the balance in his favour.
[16] For the second defenders, Ms Ross QC questioned what treatment of the pursuer had been identified as a breach of his ECHR protection. So far as the first defenders’ previous policy was concerned, averments about that could only be relevant if it was policy that applied to the pursuer. The complaint seems to be that all of the defenders should have risk assessed him before deciding whether to hand-cuff him. The logic of that complaint is that the ECHR breach was to fail to do so, whatever the outcome would have been. Against the agreed background of the pursuer’s history of violence and risk of absconding this was at best an artificial or hypothetical claim. The only three possible averments of substance on the part of the pursuer all relate to his feelings about being hand-cuffed, whether embarrassment or distress. The pursuer does not and cannot plead that he was distressed because he was not subject to a risk assessment about whether he should be hand-cuffed. He also does not and cannot aver that he would not have been hand-cuffed following such a risk assessment. Even if the pursuer was correct in claiming that there had been some form of procedural breach that would not entitle him to damages. He does not plead that he was deprived of an opportunity to show that he was not a risk because he accepts his previous misconduct and cannot offer to prove that he was not a risk. At best for the pursuer even if the policy was unsound and breached his Convention rights, it is difficult to see how he could secure an award of damages now that the policy has changed. Ms Ross then adopted all of Mr Johnston’s submissions on Article 3 and 8 and submitted that the pursuer could not overcome the high threshold for breaches of the Convention.
[17] A particular attack on the specification of the pursuer’s pleadings was mounted on behalf of the second defenders. Ms Ross pointed out that the actual involvement of the second defenders was minimal. The default position when the pursuer was escorted to hospital on 32 occasions was that he was taken by the third or fourth defenders. Unusually prison officers in the employment of the second defenders had to provide the escort. This amounted to a total of two outpatient appointment and seven inpatient appointments. The second defenders were involved in a total of 30 hours and 30 minutes of escorting the pursuer. That had been averred by the second defender with the pursuer’s response being that of “believed to be true”. As the second defenders’ involvement was minimal, it was essential that they understand the case against them. The pursuer’s pleadings were inspecific and vague and importantly not referenced by time. An example of the lack of specification was that an important allegation about escorting guards reading his medical records was unsupported by any identification of the guards in question.
[18] The only averments specifically directed at the second defenders when they were escorting the pursuer is contained at Article 6 of Condescendence at page 33 of the Closed Record. It was there averred that “on one occasion in June 2012 the pursuer was in the Accident and Emergency Department when drunk members of the public started shouting at Sodexo staff for keeping him hand-cuffed.” There are no other specific averments directed at the second defenders. A reference was made to No 6/1 of process, the special security briefing for the escorting of prisoners. It was there provided that for hospital escorts, an escort chain was usually in place which allowed for discreet supervision. Cuffs and escort chains were mandatory other than in relation to open prisoners. It was disputed on behalf of the second defenders that the pursuer could show that no risk assessment was carried out. In section 4 of 6/1 were examples of records kept for every escort relating to the pursuer. In relation to the entry for June 2012 there was a specific reference to the pursuer being potentially violent and an escape risk and also to drugs/alcohol issues. It could be seen that the records had information tailored to the individual prisoner. The record in question also detailed the transfer from Addiewell at 16.21, arrival at St John’s Hospital at 16.35 and a transfer to G4S “custody” at 21.00. When compared with the pursuer’s averments about the hospital visit in June 2012 it could be seen that despite the detailed record available the averment was very inspecific. This was particularly noteworthy given that the June 2012 occasion represented the highest degree of specification given in the pursuer’s case. The pursuer had been called upon in the pleadings to provide further specification both in relation to an alleged incident about guards passing comment about medical consultations and other occasions but failed to respond. Examples of particularly acute lack of specification were given. In Article 8 at page 40 having stated that the pursuer was not always hand-cuffed it is averred that “on one occasion when the pursuer was unrestrained ...”. This was hopelessly inspecific as to time. Secondly, at page 42 it was averred that “on each occasion ... the treating a physician would request the guard remove the hand-cuffs and the guard would decline” and at page 44 it was averred that “Adette or Adelle asked the pursuer not to urinate as she found it embarrassing” the reference being to a Reliance worker. Ms Ross submitted that it was not her intention to take some sort of opportunistic pleading points. The lack of specification was material and impacted on the second defenders’ ability to investigate and prepare this case.
[19] Ms Crawford, QC for the third defenders adopted Mr Johnston’s submissions in relation to the relevancy of the case in Article 3 and 8 as pled. She reiterated that the pursuer would have to have been affected by the treatment complained of sufficient to engage Articles 3 and 8. There was nothing in the pursuer’s averments from which it could be established that any treatment of him was sufficiently serious to engage those articles of the Convention. The information given in the pursuer’s pleadings about the 32 hospital admissions speak only of the date, the hospital and who escorted the pursuer. No detail is given about the length of waiting time, how many members of the public were present and the distance he was required to walk in public view. It was clear that when he was an inpatient in hospital, he was restrained only by a single chain and was not double cuffed. In relation to the incident involving the guard narrated at Article 10 of Condescendence, it was clear that it was the guard who had found it embarrassing, not him. In Article 11 there was reference to the embarrassment of having to be helped showering and having bed baths but this had nothing to do with the mechanical restraints. Article 12 starts with a generic averment about humiliation and degradation but there is no specification at all of what caused this. The rest of the factual averments relate to the first defenders’ policies and are therefore irrelevant. In Article 13 a concern is expressed about confidential information being discussed by the medical personnel in the presence of the guard. On no view could this be said to be enough to come up to the threshold of an Article 3 ECHR case. Like Ms Ross, Ms Crawford argued that it was very difficult for the third defenders to know what the case against them was.
[20] In essence Ms Crawford described the proposition being put by all of the defenders in this case as uncontroversial, namely that handcuffing prisoners does not of itself amount to treatment contrary to Article 3 or engage Article 8 ECHR. That much was clear from the relevant Strasbourg authorities. That the pursuer offers to prove that he was embarrassed and uncomfortable from time to time was not nearly serious enough for successful breach of Convention rights claim.
[21] Mr Duffy for the fourth defenders, having adopted Mr Johnston’s submissions on this chapter argued that the pursuer’s claim for damages as a result of his ECHR rights being breached “does not get off the ground”. He too argued that the minimum threshold for Article 3 was not met, that article 8 was not engaged, let alone that there had been any disproportionate interference with the pursuer’s right to private and family life. Again, even if Article 8 was engaged, there was no good argument that any interference was disproportionate. Mr Duffy also adopted the submissions of Ms Crawford in relation to the lack of specification in Article 6-11 of Condescendence about what actually happened on each occasion pled. This was particularly important given that, as Mr Johnston had submitted, there were different grounds of action against four very different defenders.
[22] Mr Leighton acknowledged on behalf of the pursuer that the restraint of prisoners generally does not give rise to any issue. However, it was clear that the handcuffing of prisoners when attending medical appointments could engage Article 3. He relied on FGP v Serco and Another [2012] EWHC 1804 (Admin) at paragraphs 50-55 in support of that proposition, although it was accepted that the case involved a detainee rather than someone serving a custodial sentence. Reliance was also placed on McDowall v G4S Care and Justice Services (UK) Ltd 2016 SLT (Sh Ct) 107, the recent sheriff court case referred to by Mr Johnston. In the present case the pursuer attended for medical treatment on a large number of occasions over an extended time including inpatient stays and for surgery. Accordingly, he was by definition unwell. He was between 52 and 56 years old during the course of his hospital admissions as averred on Record. He was exposed to public attention. This all amounted to a relevant case that would entitle the court to arrive at the view that there has been a breach of Article 3 if the pursuer proves all that he offers to prove.
[23] So far as the Strasbourg authorities were concerned, it was accepted on the basis of Raninen v Finland that there would have to be adverse consequences for a pursuer. It was noted that Mr Raninen was 25 years old at the material time. In Mouisel v France (2004) 38 EHRR 34 the applicant had been sentenced in relation to similarly serious convictions as those involving the present pursuer. He had been 49 or 50 years old at the date of the relevant treatment. Reliance was placed on paragraph 43 and 47 of the Judgment. In particular reference was made in that case to the increasingly high standard being required in the area of the protection of human rights.
[24] In relation to Article 8, it was clear from FGP v Serco and Another (cited above) at paragraphs 46 and 47 that handcuffing prisoners when they were attending medical appointments can engage that protection. Reference was also made to Greens Petitioner 2011 SLT 549 particularly at 278, where it was highlighted that Article 8 is wider than Article 3. In Munjaz v United Kingdom [2012] ECHR 1704 at paragraphs 78-80 it was highlighted that Article 8 rights are particularly important in respect of detained persons.
[25] For both the case under Articles 3 and Article 8 ECHR the pursuer submitted that the usual test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44 applied. It could not be said at this stage that even if he proved everything that he offered to prove the pursuer will not succeed. The totality of the case included not just restraint but also issues of confidentiality and exposure to public view.
[26] So far as the averments about breach of the prison rules in Article 30 of Condescendence were concerned, Mr Leighton accepted that the prison rules did not afford the pursuer any enforceable domestic right and accompanying remedy. However, in order to be “in accordance with law” in Article 8 terms, the defenders would have to have complied with all of the relevant applicable rules of which the 2011 Scottish Prison Rules form part. A breach of the Prison Rules is a breach of the lawfulness requirement of Article 8(2) ECHR. This part of the argument went not so much to the proportionality aspect as to an argument that the defenders had not acted in accordance with law.
The Common Law Case
[27] Mr Johnston for the first defenders directed attention to Articles 25 and 26 of Condescendence in which the pursuer raises a right to privacy and liberty at common law. He avers that his “residual liberty” has been infringed, “as a result of the defenders’ fault and negligence.” This was described as woefully inspecific. It was noteworthy that the pursuer appeared to concede that the use of restraints was only unlawful “for at least some of the time”. The pleadings did not explain when their use was unlawful and why. Any argument about a common law right to liberty was not relevant. The pursuer was deprived of his liberty in a manner that complied with Article 5 ECHR. It was accepted that a prisoner enjoyed such rights and liberties as are not inconsistent with his incarceration – Raymond v Honey [1983] AC 1. That took the pursuer no further. It would appear that the pursuer intended to rely on Henderson v Chief Constable of Fife 1988 SLT 361. That case involved a woman arrested and detained on suspicion who had been subjected to certain invasive treatment which was unjustified in the circumstances where she had not been convicted or even charged of anything at the material time. Accordingly the case was of no assistance to the pursuer and it was difficult to ascertain what common law case was being relied on.
[28] Ms Ross for the second defenders adopted Mr Johnston’s submissions and referred also to the case of R v Deputy Governor of Parkhurst Prison and Others ex parte Hague 1992 1 AC 58, in particular the passage at page 171d-f. This supported her contention that the Prison Rules do not confer any private rights of action on someone such as the pursuer. The Parkhurst Prison case was followed in Cullen v Chief Constable of Royal Ulster Constabulary [1999] NI 237.
[29] Ms Crawford adopted Mr Johnston’s submissions in relation to the common law case and submitted also that the pursuer could not aver any relevant separate case arising from the Prison Rules. Mr Duffy also adopted Mr Johnston’s submissions and again sought to distinguish the case of Henderson v Chief Constable.
[30] As anticipated, Mr Leighton founded his common law case particularly upon the decision in Henderson v Chief Constable of Fife 1988 SLT 361. That case was support for the proposition that someone whose liberty had been infringed enjoyed a common law right to residual liberty in so far as not inconsistent with detention. There was an analogy between the removal of the woman’s bra in Henderson and the unnecessary and public use of handcuffs in relation to the present pursuer. Both constituted infringements of the residual liberty of the detainees involved. It was not accepted that the use of handcuffs was some sort of integral part of being detained. Accordingly it had to be justified in any given situation. The pursuer’s contention was that the use was not justified in the circumstances averred. The paucity of case law on the issue was not fatal to the common law case as the court could simply recognise the principle. Reference was also made to the English case of Wainright and Another v Home Office [2001] EWCA Civ 2081 concerning a prison visitor who had been stripped searched due to a concern about drugs being brought in to the prison. It was there confirmed that there was no “tort” of invasion of privacy in English common law, but the situation in Scotland had been seen to be different in the Henderson case. Mr Leighton accepted that the common law case should only go to inquiry if the ECHR case was being sent.
Time Bar
[31] Ms Crawford QC for the third defenders presented the main arguments in relation to time bar. She referred first to sections 6(1) and 7(1) of the Human Rights Act 1998. As the pursuer avers that the basis of his claim is the 1988 Act, he seeks to prove that the defenders, or one or more of them, failed to comply with that legislation by breaching his rights under Articles 3 and 8 of the Convention. Section 7(5)(a) of the 1998 Act provides a one year limitation period in the following terms:
“7(5) Proceedings under subsection (1)(a) must be brought before the end of –
(a) the period of one year beginning with the date on which the act complained of took place or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances....”
It was not disputed that the last action of the third defenders in relation to these matters was in December 2011. The pursuer’s action was raised in June 2013 and the third defenders were brought in by way of an interlocutor dated 3 October 2013. Accordingly, it appeared that the action in so far as directed against the third defenders was out of time. The pursuer avers (Article 32 of Condescendence) that it would be reasonable to permit him to pursue the action out of time. In that connection he talks of a continuing course of conduct on the part of the defenders of which the third defenders were part. It is said that the transfer of responsibility from the third to the fourth defenders made no difference to the treatment that he experienced. However, Ms Crawford argued that the notion of an ongoing course of conduct being sufficient to meet a time bar argument in this context was not supported by authority. She referred to Somerville v Scottish Ministers 2008 SC (HL) 45, per Lord Hope of Craighead at paragraphs 49 and 52. In the first of those passages Lord Hope makes clear that the wording of section 7(5)(a) contemplates a single act. In contrast in this case there are 32 separate incidents alleged, some lasting for a number of days when the pursuer was an inpatient. While one could see an argument for a continuing act over the course of a few days of a hospital admission as an inpatient, a period of years with 32 separate admissions could never be regarded as a continuing act. Each escort event was a separate event and each cannot then “hook onto” a subsequent event in the context of time bar. In any event, it was difficult to know what the pursuer meant by a course of conduct. It had already been submitted that the case against the first defenders in so far as their previous policy was concerned was not relevant. The pursuer averred that he had “suffered as a result of the defenders’ policies and practices”. However the third defenders had no involvement after January 2012 and no relationship with any other defender. This was not disputed by the pursuer who averred that it was the fourth defenders who escorted him from the beginning of 2012. In the absence of any averment that the third defenders were engaged upon some sort of course of conduct with the fourth defenders or indeed anyone else after 1 January 2012, there could be little doubt that the case against them was out of time.
[32] In any event the pursuer made no relevant averments which would entitle the court to exercise its discretion under section 7(5)(b) of the 1998 Act to permit the action to proceed out of time. The pursuer avers that there was an ongoing course of conduct and that he was originally unaware that he had a legitimate source of complaint. He states that he was unaware of the policies and approach of the defenders to his restraint and unaware that he had a potential legal claim until he was so told by his solicitor. Taking these averments at their highest and even leaving aside their lack of specification, they did not form a proper basis to entitle the court to exercise its discretion. The only other averments, relating to the steps the pursuer avers were taken by his agent, were made as a possible scene setting for arguing that the agent was at fault. However, any fault on the part of the pursuer’s agent was not a relevant circumstance. It could not favour the pursuer in respect of a late claim in respect of the third defenders. The pursuer was likely to argue in relation to the equitable ground for extension that his primary remedy for a breach of his convention rights was declarator. However, Ms Crawford submitted that the pursuer was not in the territory of declarator as he had not averred sufficient that his rights were breached. Reference was made to McGeoch v Lord President of the Council 2014 SC (UKSC) 25 and in particular a passage in the Judgment of Lady Hale at paragraph 100. The factors militating against the pursuer being allowed to pursue the action out of time included the fact that he would achieve no success after a Proof in light of his own previous convictions, history of absconding and indeed the admission (at page 37 of the Closed Record) that when the second defenders escorted him they had to guard against the risks he posed. The relatively short period of one year in the legislation was not a factor as that was simply what Parliament had decided. In A v Essex County Council [2011] 1 AC 280, the UK Supreme Court had lent support to the proposition that the likelihood or otherwise of a successful and meaningful award being made was relevant for a decision on extension of time – see paragraphs 168-169. Similarly, in Rabone and Anther v Pennine Care NHS Trust [2012] 2 AC 72 where proceedings had been raised 4 months after the end of the relevant limitation period, the reasons for the delay were a significant factor in deciding whether to extend time – per Lord Dyson at paragraph 75. It was entirely irrelevant that the pursuer might have been unaware that he had a legitimate source of complaint or about the terms of the first defenders’ policy. He was told by his solicitor in September 2012 that he might have a claim and no proceedings were raised at that time. It is said that he had to request medical records which were perused in May 2013 and following a consultation with counsel, proceedings were raised in June 2013. In exercising discretion it should be taken into account that there would be prejudice to the third defenders should the action be allowed to proceed against them because of the lack of specification in the pursuers’ pleadings. The pursuer appears to argue that the defenders should keep proper records for the length of time that a person injury action might be raised against them. However, the time bar argument had to be looked at in the context of the type of action now raised and if the common law case was irrelevant that would have a bearing on whether the keeping of proper records was a relevant issue.
[33] Ms Crawford also referred to her Note of Argument in support of the third defenders’ plea of mora taciturnity and acquiescence. This is a plea to the merits (Tonner v Reiach & Hall 2008 SC1 at 111). The three elements of the plea will be frequently interrelated. While normally conduct on the part of the pursuer was coupled with a reliance on or prejudice to the defender it is not necessary to establish prejudice and acquiescence can be inferred from the circumstances – Somerville v Scottish Ministers 2007 SC 140 at 90-94. It was submitted that in the present case all elements of the plea were established. The delay was unreasonable. The pursuer had made no complaint about the circumstances of his hospital admissions until prior to the raising of proceedings. His acquiescence to the conditions complained of by him can be inferred. In any event, the third defenders are substantially prejudiced. They are unable to properly investigate the factual circumstances of the pursuer’s hospital attendances as a result of the woeful lack of specification in the pursuer’s averments.
[34] Mr Johnston confirmed that the first defenders also wished to insist in their limitation plea. As the pursuer seeks damages in respect of a number of individual acts of handcuffing and alleges a breach of his Article 3 or Article 8 rights in respect of each, he could have raised an action in respect of any of those acts. Each of the pursuer’s attendances at hospital was a separate event, with each of the incidences of handcuffing being a separate act for the purposes of section 7. There was no continuing course of conduct. In Somerville v Scottish Ministers [2008] SC(HL) 45 at paragraph 197, Lord Mance had expressed the view that instances of prisoners segregation were to be regarded as constituting separate allegations and not as constituting continuing conduct. The court should decline to extend the limitation period in any event. The pursuer makes no relevant or sufficiently specific averments to support his statement in Article 32 of Condescendence that “it is reasonable that the pursuer be permitted to pursue this cause even if otherwise out of time”.
[35] Ms Ross also submitted that the action was time‑barred, at least for the period prior to 6 June 2012, being a year prior to the raising of proceedings. She accepted the timebar was not a complete answer to the pursuer’s case against the second defenders. However of the nine occasions in which the second defenders had been involved in escorting, six were prior to 6 June 2012. Only three occasions would remain on record against them if the timebar argument succeeded. She submitted that the pursuer’s position on this seemed to be that the existence of a policy illustrated continuing incompatibility and therefore all hospital visits could be seen as part of a course of conduct. This was not well‑founded. The proper approach was to look at what happened on each of the dates identified, as the periods of time in between each hospital visit were irrelevant.
[36] Mr Duffy for the fourth defenders adopted Ms Crawford’s submissions. He agreed that this was not a case of an ongoing course of conduct because each escort was an individual act for the purposes of section 7 of the 1988 Act. He submitted also that the pursuer had made no relevant averments to justify the extension of the time for raising proceedings on equitable grounds. The fourth defenders were affected by the timebar issue in relation to hospital visits number 17 and 18 in the list of 32.
[37] Mr Leighton submitted that no part of the case against any of the defenders was time‑barred. The actions of the defenders were suffered by the pursuer as a course of conduct. That conduct was an ongoing practice whereby the pursuer was subjected to handcuffing, generally double handcuffing, without consideration apparently being given by those escorting him to any variation of his treatment. The transfer of responsibility from the third to the fourth defenders made no difference to the treatment that he experienced. His principle position was, therefore, that there was no need to consider section 7(5)(b). It was submitted that Somerville v Scottish Ministers [2008] SC(HL) 45 at 45-52 was supportive of that position. Reference was also made to A v Essex County Council [2011] 1 AC 280 at paragraph 113. It was clear from the Somerville case in particular that the court would have to consider carefully the facts of each case and what happened to the particular pursuer. A series of events that are the consequences of an unlawful policy will probably be regarded as a continuing course of conduct. No timebar issue was raised when the action proceeded as a judicial review and it was hard to see why this could now be raised following the transition to the case being an ordinary action. The pursuer’s complaint has always been about the consequences of the unlawful policy. Mr Leighton’s fall-back position was that it would in any event be just and equitable to extend time in terms of section 7(5)(a) if his first argument did not find favour. The factors for and against extension had to be balanced – A v Essex County Council at paragraph 167. The burden of proof was not relevant to the exercise. The pursuer’s ignorance of his legal rights prior to September 2012 was important. In so far as a point was made about a possible action against his agents, those agents could easily defend such an action by pointing out that the pursuer has been subject to an ongoing policy. In any event the declarator he sought was not one that could be obtained against his agents. The pursuer has a reasonably good claim for infringement of his Article 3 and Article 8 rights particularly on the lawfulness aspect of the case. Under reference to Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at 108 it was submitted that a generous interpretation of “just and equitable” should be made. If the timebar argument was partially successful, for example in relation only to the third defenders, there would be a risk of an incomplete picture going to Proof in this case. That was another factor to be taken into account at the just and equitable stage. It was accepted that the dicta of Lord Mance in Somerville at paragraph 197 relied on by Mr Johnston appeared to contradict the pursuer’s position on section 7(5)(a), but it had no bearing on the just and equitable ground. Now the court could take cognisance of the pursuer’s common law case in that if it was regarded as fit for enquiry it would be just and equitable for the Human Rights Act case to proceed along with it.
[38] On the third defender’s plea of mora taciturnity and acquiescence, Mr Leighton emphasised that as the case proceeds now by way of ordinary action rather by way of petition such a plea had limited applicability other than in relation to stale claims such as Tonner v Reiach & Hall 2008. The pursuer has averred that he was in ignorance of his rights until discussion with his agents in September 2012. He had no contact with the third defenders and so could not complain to them. Reference was made to In re Baronetcy of Pringle of Stichill 2016 SLT 723, a Privy Council case, in which it was emphasised, at paragraph 63 and 64, that knowledge was crucial in considering whether someone could or should have raised an action earlier. In any event, the third defenders could not make out each of the three elements of mora taciturnity and acquiescence given the period of the third defenders involvement. All of the factors raised in relation to issue of statutory timebar were of relevance to a defence of the mora taciturnity and acquiescence plea. The Human Rights Act 1998 made appropriate provision for the avoidance of stale claims.
The Pursuer’s Motion for Decree De Plano
[39] Mr Leighton moved for decree de plano against the first second and fourth defenders. He accepted that he could not seek such a decree in respect of his Article 3 claim as there would have to be evidence about the extent of any humiliation and degradation suffered. As the third defenders did not make the necessary averments and admissions on record that the other defenders did, decree against them at this stage would not be appropriate. In essence the argument first centred on the liability for breaches of ECHR on the part of the second and fourth defenders. Those defenders admitted that they were public authorities. Certain of their functions were of a public nature, particularly when escorting the pursuer outwith the prison. The case of YL v Birmingham City Council and Others [2007] UK HL 27 was relied on as support for the contention that those defenders were public authorities and so bound by the Human Rights Act in their undertaking of the tasks about which the pursuer complains. This did not appear to be contentious being the subject of appropriate averment and admission at Article 24 and answer 24. The only defence to liability on the part of a public authority for an ECHR breach is where primary legislation, directly or indirectly, requires the act complained of to be carried out (section 6(2) of the 1998 Act). Contractual terms did not amount to an excuse to fail to comply with convention obligations. It was desirable that a claimant in an appropriate case had a remedy directly against the legal person actually putting the restraints in place. So far as the first defenders were concerned as indicated in answer to Mr Johnson’s arguments, the first defenders are generally responsible for the management of prisons and the care of prisoners. They cannot derogate from their convention responsibilities through contractual act. Such derogation is not on the face of it permitted in terms of the 1998 Act. As a matter of public policy it would be undesirable if the first defenders were permitted to evade their overall responsibilities for prisoners and the prison system. Reference had already been made to Wos v Poland and the inability of the state to absolve itself from responsibility through delegation. The substance of the support for decree de plano against the first second and fourth defenders was that none of those defenders undertook individualised risk assessments in respect of the pursuer. The second defenders avers in respect of those occasions on which they had responsibility that “had individual risk assessments been carried out at the material times, it would have been reasonable for the second defenders to decide to use double cuffing”. The new policy of individual risk assessments from 3 April 2014 is also averred. The pursuer’s contention is that from those averments one could easily infer a lack of assessment of risk of the individual case of the pursuer prior to April 2014 and there was accordingly no defence to declarator.
[40] Mr Johnson on behalf of the first defender had addressed many of the points raised by Mr Leighton in the course of his argument about the nature of the case as now pled and who the relevant defenders are. He opposed the pursuer’s motion for decree de plano. Ms Ross similarly relied on the arguments already made in relation to policy and the individual assessment of risk actually carried out by the second defenders as pled. Ms Crawford was not concerned with the pursuer’s motion for decree de plano as it was not directed against her. Mr Duffy moved me to repel the pursuer’s plea for decree de plano. He pointed out that there is no rule of law that the absence of any individualised risk assessment was determinative in the pursuer’s favour, any more than the presence of one would be determinative in the defenders’ favour – McDowall v G4S Care and Justice Services (UK) Limited 2016 SLT (Sh Ct) 107. The issue is not whether the decision making process was satisfactory but whether the actions in question taken in respect of the pursuer were justified on security grounds. The facts averred showed that the restraint was reasonable, necessary and justified. The pursuer had admitted certain averments about his conduct and the risks that required to be managed. The case was not about whether there was any defective decision making process but whether the applicant’s convention rights had been violated. It was submitted that as the facts of this particular case appeared to show that the level of restraint employed when escorting the pursuer would plainly have been justified, the pursuer cannot reasonably claim a remedy under the Human Rights Act 1998. Far from his having an unanswerable claim, he had not stated a relevant one. The position was analogous to the prisoners who challenged their inability to vote in McGeoch v Lord President of the Council 2014 SC (UKSC) 25. There, given the seriousness of the offences of which they had been convicted, there could be no doubting the UK’s entitlement to deprive them of the vote, even if a blanket ban on prisoner voting might be incompatible with the convention – Lord Mance at paragraph 83, Lady Hale at paragraph 99. Even taking the pursuer’s argument at its highest and accepting for the purposes of the argument a relevantly pled case, the issue of whether the level of restraint used was in fact justified would always be a matter for evidence.
Discussion
(i) The Correct Public Authority
[41] The background to the argument about whether the first defenders remain a relevant public authority in this case arises from the transmutation of the proceedings from a Petition for Judicial Review to an Ordinary Action. As indicated at the outset of this opinion the subject matter for the Judicial Review was a complaint about the first defenders’ policy of handcuffing nearly all prisoners when they were escorted out of prison for medical appointments. The difficulty with the policy was undoubtedly that it appeared to give inadequate consideration to whether a particular prisoner actually posed a risk. Accordingly, any prisoner, one who posed a risk or one who did not, was in a position to make the complaint made by way of Judicial Review. What followed, as I understand the position, is that the first defenders, without making any formal concession, adopted a new policy so that it was clear that account was taken of the risk posed by each individual prisoner before arrangements for escorting them out of prison for any purpose were put in place. Accordingly, there is no longer any scope for complaining about the first defenders’ policy in this respect. That was what lay behind the change from this case being a Petition to an action for declarator and damages. In order to succeed in the action as now pled, the pursuer would require to plead a relevant case of a breach of his individual human rights as a result of treatment meted out to him by any of the defenders to the action. In that new context, it is not suggested that the first defenders were involved in any physical treatment of the pursuer when he was escorted from prison to hospital.
[42] It is not disputed in this case that the second and fourth defenders are relevant public authorities for the purposes of section 6 of the Human Rights Act 1998, exercising a public function within section 6(3)(b) thereof. It seems clear that the third defenders are in a similar category, despite the lack of formal admission. The question that arises for determination under this section is whether the first defenders also fall within that category having set the policy but having played no part in escorting the pursuer to hospital. In YL v Birmingham City Council and others [2007] UK HL 27 it was held that a distinction was to be made between the function of a local authority in making arrangements for the provision of care and accommodation in its area and a private company contracted to provide that care. It was held that the resident of a private care home who brought the action, while retaining public law rights as against the local authority which had arranged the accommodation, did not have Convention Rights as against the care home operated by the private company. The decision of the House of Lords in that case is authority for the proposition that there may be certain essentially state or government functions, particularly involving the exercise of duties or powers, for the manner of exercise of which the state will remain liable, notwithstanding that it has delegated them to a private law body - paragraph 99 per Lord Mance. The Strasbourg Decision in Wos v Poland (Application No. 22860/02), referred to at paragraph 97 of the YL judgment, is given as an example of that principle. There is no authority on whether responsibility for the prison service is a duty that can be delegated. However, the terms of section 6(3) of the Human Rights Act 1998 provide that public authority includes “any person certain of whose functions are functions of a public nature”. It is not difficult to see why the second and fourth defenders have made the concession that they are performing functions of a public nature in this context. The transportation of prisoners to places where members of the public will congregate, including hospitals, doctor’s surgeries, court and tribunal buildings and the like, carries responsibilities for ensuring, in so far as is practicable, the safety and security of the general public. Accordingly, this is a case where, if the pursuer has pled a relevant case, he has a remedy against those who concede that they were carrying out functions relevant for the purposes of section 6. It is section 7 of the 1998 Act that creates the necessary relationship between the individual making the claim and the public authority in question. It provides:
“7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal,
or
(b) rely on the Convention Right or Rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.”
[43] I accept the submission of Mr Johnston for the first defenders that, now that the case proceeds as an Ordinary Action, the only relevant matters are those involving any actions taken against this particular pursuer. He cannot be a victim of any unlawful act unless a public authority has taken action against him that breaches his convention rights. It is noteworthy that section 7(3) makes separate provision in respect of Judicial Review proceedings. An applicant raising Judicial Review proceedings has a sufficient interest in relation to the alleged unlawful act only if he is or would be a victim of that act. As indicated earlier, when the action related to a blanket policy, any prisoner escorted from prison could be regarded as a victim of that policy and it was the failure to make any individual assessment at all that was the problem, not what the outcome or an assessment in respect of any particular prisoner would have been. To that extent, the case of Dickson v United Kingdom 46 EHRR 41, relied on by Mr Leighton, is uncontroversial. Where the alleged breach of the Convention is the imposition of a policy, an assessment of whether the policy was unlawful does not depend on whether the end result was potentially justifiable. In this case, following formal amendment, the focus of the case can no longer be the policy itself. It is a complaint by an individual about the way in which he was treated and an argument that that treatment breached his rights under Articles 3 and 8 ECHR. In a decision of Collins J in FGP v Serco Plc and Secretary of State for the Home Department [2012] EWHC 1804 (Admin), a claimant who had been detained at an immigration removal centre and handcuffed using Closet chains when he was taken to hospital for investigation or treatment, raised proceedings against both the company responsible for staffing at the immigration removal centre who escorted him and also the Secretary of State as having overall responsibility for detention centres and for issuing guidance on these matters. The case was ultimately dismissed against the Secretary of State on the basis that any actings of the individual officers that may have breached the ECHR rights of the claimant did so on the instructions of the company that employed them and not on any general policy issued by the Secretary of State. The case is of interest simply because it illustrates that different considerations apply as between the lawfulness of a policy, for which the first defenders in this case are clearly responsible, and the actings of those who implement that policy, in this case the second third and fourth defenders. I accept the submission of senior counsel for the first defenders that, on the authority of Belfast City Council v Miss Behavin’ Ltd 2007 1 WLR 1420 the central question in a case of this sort is whether there has actually been a violation of the Convention Rights of the party bringing the action as opposed to a question of whether the decision maker properly considered the question of whether that individual’s right would be violated or not – paragraph 15 per Lord Hoffman. The decision of the UK Supreme Court in Ruddy v Chief Constable 2013 SC(UKSC) 126 serves as an important reminder of the distinction between the exercise of the court’s supervisory jurisdiction and a claim for just satisfaction by an individual on the basis that his rights have been breached - paragraph 15 per Lord Hope.
[44] For these reasons, I consider that this is now essentially a case for a just satisfaction in the form of declarator and damages. It concerns the alleged actings of those the pursuer claims have breached his Convention Rights resulting in his being a victim for the purposes of section 7 of the 1998 Act. The nature and terms of the first defenders’ policy is of interest as background narrative but it is not the specific actings of the first defenders that interfered with the pursuer’s individual rights. The pursuer’s initial complaint in relation to the policy was, very properly, directed at the Scottish Ministers. The case as currently plead, being a complaint that different defenders acted towards the pursuer at different times in a way that breached his ECHR Rights, is no longer properly directed against the first defenders.
[45] A related point under this first section is whether the pursuer could competently seek a joint and several sum in damages against all of the defenders together. In Ruddy v Chief Constable, cited above, the pursuer in the Sheriff Court proceedings had two craves against the defenders. The first crave was against the Chief Constable only in relation to alleged assault at common law and a breach of the substantive obligation under Article 3. The second crave, which was against both defenders, related to an alleged breach of the procedural obligation under Article 3. The separation of the two craves, each dealing with a separate wrong, committed at different times by different people was sufficient to answer any point about decree being sought against defenders in a single lump sum for separate wrongs - paragraph 25 per Lord Hope. Now the pursuer in this case has failed to take into account that each of the defenders is in a different position in relation to the timing of any alleged breach and to some extent also in relation the nature of their responsibilities. Mr Leighton submitted that a pursuer who was run over by a number of cars sequentially would be entitled to raise an action against them all. That is undoubtedly the case but it is not simply the raising of the action against all of the defenders that matters in relation to this point, it is the use of a joint and several conclusion. The defenders in this case do not argue that the claim of treatment of the pursuer that was not convention compliant against each defender was so essentially different that the case should not be taken against all of those who escorted him to hospital. Again in Ruddy, there is a discussion of the types of cases that are appropriate for a single joint liability conclusion - paragraph 23 per Lord Hope. The general rule is of course that the joint and several conclusion can be taken against two defenders who have both contributed to the loss and damage which the pursuer has suffered. Where two wrongs are disconnected, however, two or more parties cannot be made conjunctively and severally liable. The difficulty for the pursuer in this case is that each of the second third and fourth defenders acted without reference to each other when they escorted the pursuer to hospital at the material times. The first defenders played no part in the escorting process at all. While it is superficially attractive to regard the pursuer’s feelings in relation to being put in handcuffs as the same loss and damage whoever committed the act against him, the undisputed facts illustrate that periods of months and even years separated the acts of the individual defenders. There are 32 separate occasions of admission to hospital averred in Article 4 of Condescendence, the first of which dates from 15 January 2011 and the last being 9 April 2014. The actions of each defender were different. Accordingly, I consider that the point taken by each of the defenders in relation to the use of a joint and several conclusion in this case is well‑founded. The difficulty could easily have been resolved by the insertion of separate conclusions against each defender.
ii Specification and Relevancy of the Article 3 and Article 8 ECHR Cases
ARTICLE 3
[46] It is well settled that hand-cuffing does not normally give rise to an issue under Article 3 ECHR where it is a measure imposed in connection with lawful detention and where it does not entail the use of force or public exposure exceeding what is reasonably considered necessary – Mouisel v France (2004) 38 EHRR 34 735 at paragraph 47. However, it is also now accepted that the conditions in which a prisoner is taken outside prison to hospital or other medical appointments can raise issues relevant to an Article 3 claim. Crucially, for a claim such as the present one to fall within the scope of Article 3 of the convention the alleged ill treatment must “attain a minimum level of severity” – Mouisel, at paragraph 37. While the assessment of such a minimum level is relative, factors such as the duration of the treatment, its physical and mental effects and sometimes the sex, age and state of health of the purported victim will be relevant. The case of Mouisel v France itself illustrates this. The applicant in that case was severely ill and was chained up during journeys to hospital to receive chemotherapy sessions. Both his feet and wrists were restrained during the treatment itself. Importantly, the state of the applicant’s health was sufficiently poor as to be incompatible with his continued detention in prison. In those circumstances the use of handcuffs was found to be disproportionate to the needs of security and the applicant’s Article 3 rights had been violated. The fact that he was not in danger of absconding or resorting to violence was another significant factor. The earlier Strasbourg decision in Raninen v Finland (1997) 26 EHRR 563 is illustrative of a situation where the necessary minimum level of severity required to fall within the scope of Article 3 of the convention was not present. While the applicant in that case had been unlawfully detained, the arbitrariness of which had caused him to feel distressed, there was no contention that the hand-cuffing had affected him physically. His claim that the treatment of him on the single date of his unlawful detention had adversely affected his mental state was examined critically by the court. Absent any causal link between the impugned treatment and his “undefined psycho social problem” his claim that his Article 3 rights had been violated failed. The broad conclusion that can be drawn from these cases, is that at one extreme, hand-cuffing an elderly prisoner, on a trip to hospital who had no history of violence or absconding who is most unlikely to present any risk to the public would be difficult to justify. In contrast, restraining a young or middle aged prisoner with a history of violence and of attempting to abscond is likely to be a proportionate response to an assessment of risk. Further, any prisoner, whether on the face of it he poses a risk of violence and/or absconding or not, requires to offer to prove that the treatment of him was sufficiently severe that there was more than a negligible impact on him, whether physical, mental or both.
[47] The authorities referred to above make clear that the particular circumstances of a prisoner, hand-cuffed or otherwise restrained, required to be closely examined. Normally the court will make an assessment of whether the requirements for a successful Article 3 claim have been met after proof. In this case, the question arises as to whether there is sufficient in the admitted, or at least undisputed, facts to form a view that this particular pursuer’s claim would necessarily fail following inquiry. It seems to me that the relevant admitted or undisputed facts in this case are as follows:
(a) The pursuer was convicted of attempted murder at the High Court in Glasgow in February 1996.
(b) In addition to the sentence of 20 years imprisonment imposed in respect of the attempted murder, the pursuer was further sentenced to periods of imprisonment of 5 years, 1 year, 1 year and 1 year in respect of three contraventions of the Firearms Act 1968 and one contravention of the Road Traffic Act 1988.
(c) On 11 November 2005 the pursuer was released on licence following a recommendation from the Parole Board for Scotland.
(d) On 20 July 2007 the Parole Board for Scotland recommended that the pursuer be recalled to custody. Around that time the pursuer received a 16 month prison sentence for contravention of section 4(3)(b) of the Misuse of Drugs Act 1971.
(e) The pursuer is listed by the prison authorities as “an absconder” due to history of an attempted abscond in August 2004 for HMP Castle Huntly where he was noted to be absent from his cell and the window of that cell was noted to have been broken. He was convicted in relation to that incident of having attempted to defeat the ends of justice and sentenced to 2 months imprisonment in November 2004.
In addition to those undisputed facts, important admissions are made on record by the pursuer. In particular, in Article 7 of Condescendence the pursuer makes the following averments;
“As condescended upon above, the pursuer has attempted to abscond and has prison disciplinary convictions as disclosed in his disciplinary records. Admitted that on the occasions when it was necessary for the secondary defenders’ employees to escort the pursuer to hospital, they were required to guard against the risks that the pursuer posed.”
In Article 12 of Condescendence the following admission is made:
“Admitted that the fourth defenders required to guard against various risks which arise when escorting prisoners from secure establishments such as prisons to insecure establishments such as hospitals. Admitted that the fourth defenders required to guard against the risk of violence to their staff or to medical staff.”
In Article 13 of Condescendence the following appears:
“Admitted that different levels of restraint were employed by the fourth defenders and their staff at different times during the pursuer’s trips to hospital.”
At Article 20 of Condescendence the pursuer avers the following:
“Believed and averred that esto individualised risk assessments were undertaken, because of the policies of the defenders and the supervision level of the pursuer, any risk assessment that was undertaken would invariably result in him being placed in restraints.”
[48] The undisputed facts and admissions referred to above are sufficient, in my view, to infer that this particular prisoner fell within the broad category of risk that would render it surprising had some restraints not been applied when he was escorted out of the prison for hospital treatment. His history of serious violent offending, the attempt to abscond and the admission that the pursuer posed a risk that at least the second defenders who operated the prison were entitled to take account of, are sufficient to support such an inference being drawn. The pursuer cannot and does not offer to prove that he did not present a risk such that the measures taken were unnecessary in relation to him. In these circumstances it can readily be inferred that his restraint was necessary. Detailed records of his history and the risks he posed were in fact kept. However, even against that background, the pursuer could still claim that he was actually treated in a way that so debased or injured him that his Article 3 rights were breached. This is where the minimum level of severity requirement is in point. An examination of the pursuer’s averments illustrates that it is the fact of being hand‑cuffed when escorted to hospital that comprises his main complaint. He lists the 32 occasions on which he was escorted out of prison to hospital. He admits (at Article 6 of Condescendence) that some degree of public exposure is unavoidable when he was attending hospital. He complains (at Article 11 of Condescendence) about still being hand-cuffed while he showered although the only consequence of that appeared to be that he claims not to have been able to satisfactorily clean himself. At Article 12 of Condescendence it is averred that being double hand-cuffed or chained during each visit to or period as an inpatient in hospital “… humiliated and degraded the pursuer”. No further specification is given and there is no averment of physical or mental consequences for the pursuer of his treatment by the defenders other than this bald statement. The pursuer also complains of having to enter and exit the hospital through the main entrance on various occasions where members of the public were present. However again, he avers no particular harm suffered by him as a result. There is also an averment in relation to the occasion when in attendance at the Edinburgh Royal Infirmary the pursuer was chained to a female Reliance officer who asked him not to urinate as she found it embarrassing. There is no averment at all about any impact on the pursuer of the Reliance officer’s alleged comment.
[49] This assessment of what the pursuer offers to prove illustrates quite readily in my opinion that, even taking his case at its highest, the pursuer cannot exceed the minimum level of severity required for a violation of Article 3. He does not aver any concrete physical or mental effects of the treatment. He was a middle aged man who suffered from a discomforting but treatable condition (pancreatitis). He had some other health complaints. On behalf of the pursuer Mr Leighton argued that the Strasbourg Court has emphasised the increasingly high standard that is required in the area of the protection of human rights and fundamental liberties with consequent greater firmness in assessing breaches in the fundamental values of democratic societies (Mouisel v France at para 43). He emphasised also that on the well-established domestic rule in Jamieson v Jamieson 1952 SC(HL) 44, the pursuer’s claim cannot be rejected without enquiry unless it can be said that he will not succeed even if he proves all that he offers to prove. However, in my view it is equally important, in giving the greatest respect to and protection for human rights, that the court does not allow claims to proceed to inquiry where the minimum requirements for a successful case are not pled.
[50] In conclusion, I do not consider that the pursuer has pled a relevant case under Article 3. The lack of specification in relation to what occurred during each hospital visit compounds the difficulties that the pursuer’s case as pled faces. Even had I allowed this claim to proceed to Proof Before Answer on the basis that a relevant case in law had been pled, I would have concluded that the inadequate specification of each alleged incident gave insufficient notice to the relevant defenders of the case against them.
ARTICLE 8
[51] The undisputed and admitted facts that I have set out in relation to Article 3 are also relevant in assessing the strength or weakness of the Article 8 case as pled. As a general rule, it is not disputed in this case that hand-cuffing prisoners when they are attending medical appointments can engage Article 8. Accordingly, any interference with private life can only be justified if it was proportionate. However, I accept the submission of senior counsel for the first defenders that some averments of physical or mental consequences for the pursuer would also be required to plead a relevant Article 8 case. On the basis of the facts outlined in relation to Article 3, it is difficult to see an argument that the requirements of Article 8 could be satisfied in this case. The admissions in relation to a history of absconding and of violence and the concession that the defenders or some of them require to guard against the risk of violence by the pursuer to their staff or to medical staff would appear to me to be sufficient to infer that hand-cuffing in the circumstances of this case was in accordance with law and necessary in a democratic society, in the interest of public safety and for the prevention of disorder or crime. Any interference was not arbitrary but was part of carefully planned operational activity. In the absence of any averments of rough treatment, resulting physical injury or psychological sequelae of the handcuffing procedures, there is nothing to suggest that the actings of those escorting the pursuer to prison was anything other than reasonable and proportionate. Accordingly, I conclude that the pursuer’s Article 8 claim is also irrelevant.
(iii) The Common Law Case
[52] Mr Leighton conceded in argument that the common law case should only go to inquiry if the case of a breach of Article 3 and/or Article 8 ECHR was found to be relevant. Accordingly I will express a brief view on this aspect of the case to confirm what conclusion I would have reached had I been allowing a Proof Before Answer. It is uncontroversial that a prisoner who has been lawfully deprived of his liberty continues to enjoy such rights and freedoms as are not inconsistent with the circumstances of his detention. In Henderson v Chief Constable, Fife Police 1998 SLT 361 two medical laboratory scientific officers engaged in an industrial dispute were arrested by police and taken to a police station. Before being placed in the cells the female scientific officer was asked to remove her brassiere. In an action by her and the male officer for damages for wrongful arrest and detention the Lord Ordinary held that the removal of her brassiere was an infringement of liberty and privacy that was not justified in law, giving rise to a remedy in damages. The circumstances of that case bear no resemblance to the pursuer’s situation. The female medical officer in question not been convicted of any offence, had been entirely cooperative with the police and had made no attempt to escape. She was the victim of a wrongful arrest and detention. The situation of detainees is rather different from someone such as the pursuer who is serving a lengthy sentence after lawful conviction. Nothing in the case of Henderson supports an argument that a convicted prisoner has a right at common law not to be restrained when taken to a public place with all the security considerations that escorting him out of prison entails. I accept also that the Prison Rules do not confer any private right of action on someone such as the pursuer - R v Deputy Governor of Parkhurst Prison and others ex parte Hague [1992] 1AC 58 at 171. In the circumstances, if the pursuer’s averments, including the various undisputed facts and admissions referred to earlier, had been pled only as a common law case, I would not have found it relevant for inquiry.
(iv) Time‑bar
[53] A time‑bar plea is a preliminary plea which can be determinative without the substance of action being considered. However in the circumstances outlined earlier in this opinion, I was addressed on this issue later in submissions and I consider it appropriate to follow that format in this discussion, particularly in light of the views I have reached about the pursuer having failed to plead a relevant case that he was a victim of a breach of his human rights in terms of the 1998 Act. However as the time‑bar argument would have been capable of resolving the matter at least for the third defenders had I decided it in their favour I will outline my consideration of the issue.
[54] The first question is whether these proceedings were initiated before the end of the period of one year beginning with the date on which the “the act complained of took place”, in terms of section 7(5)(a) of 1998 Act. As indicated earlier Ms Crawford for the third defenders took the lead on this aspect of the argument, no doubt because the success on this point would result in the third defenders being released from the action even if it continued against others. The second and fourth defenders were affected in part in that some of the hospital visits and admissions listed as being those for which those defenders were responsible would be time‑barred if the argument succeeded. Counsel appeared to disagree to some extent on the effect of the judgments of Lord Hope and Lord Mance on this point in Somerville v Scottish Ministers 2008 SC (HL) 45. In that case, one of the questions raised for determination was whether, where a continuing breach of convention rights over a period of time is alleged, time begins to run, for the purposes of section 7(5) of 1998 Act, from the first date on which the breach occurs. As it turned out the answer to that question was not necessary for disposal of the case but both Lord Hope and Lord Mance expressed views on the matter. The prisoners in Somerville had complained of the lawfulness or otherwise of their segregation for other prisoners during a number of separate periods. On the interpretation of section 7(5)(a) Lord Hope opined as follows:
“The wording of sec 7(5)(a) contemplates that an ‘Act’ is a single event which occurred on a particular date. No express provision is made for an act which extends over a period of time, such is as said to have occurred in these cases …
I would hold that the phrase ‘the date on which the act complained of took place’ in sec 7(5)(a) means, in the case of what may properly regarded as a continuing act of alleged incompatibility, that the time runs from the date when the continuing act ceased, not when it began. Otherwise it would not be open to a person who was subjected to a continuing act or failure to act which was made unlawful by sec 6(1) HRA to take proceedings to bring it to an end without relying sec 7(5)(b) while it was still continuing after the expiry of one year after its commencement …
But the question whether the acts complained of in these cases are continuing acts or one‑ of acts with continuing consequences is not easy to determine on the petitioner’s pleadings. Decisions of the Strasbourg Court indicate that it tends to analyse situations such as these as one‑of acts with continuing consequences, rather than continuing breaches of the convention (see, eg Camberrow MM5 AD v Bulgaria, p17; Blecic v Croatia, paras 85, 86). This is not a rule of law, however. Each case must be viewed on its own facts.”
Lord Mance (at para 197) expressed his view in the following way:
“Assuming sec 7(5) of the Human Rights Act applies, the language of sec 7(5) appears to me clear‑cut. The starting point is to identify ‘the date on which the act complained of took place’. Each monthly order and authorisation constitutes for that purpose a separate act. Subject to any short time limit, a segregated prisoner who complains of segregation pursuant to any such order or authorisation must do so within one year of the relevant order or authorisation under sec 7(5)(a), or ask the court to grant an “equitable” extension under sec 7(5)(b). …
No doubt the court’s equitable discretion would be exercised to take account of the fact of continuing segregation … as well as the undesirability of confining attention to only part of an overall picture. The fact of any prior segregation (even if the time limit did prevent it being the subject of any claim) would also be relevant when considering the justification for any subsequent segregation in relation to which any complaint was not time‑barred.”
[55] The individual hospital visits and admissions relative to the pursuer in this case are analogous to the separate periods of segregation under discussion in Somerville v Scottish Ministers. I disagree with counsel for the pursuer’s submission that the dicta of Lord Mance is supportive of the pursuer’s position that the actions of the defenders were continuing acts in this context. An examination of the pleadings illustrates that the pursuer complains of 32 separate incidents against different defenders, the circumstances of each instance differing in terms of duration and circumstance. Accordingly applying the dicta in Somerville but looking at the particular circumstances of this case I consider that the third defenders’ time‑bar point is well taken. So far as the other defenders are concerned not all of the complaints against them would be time‑barred as a result of the application of the one year rule. However, for the reasons I explain below the division of the various hospital admissions into time‑barred and non-time‑barred incidents is one of a number of factors relevant to the equitable ground for extension.
[56] The second question that then arises is whether, in respect of the pursuer’s case against all of the defenders, section 7(5)(b) comes into play such as to extend the period of 1 year to “such longer period as the court or tribunal considers equitable having regard to all the circumstances”. On the second question, I consider that the view stated by Lord Mance at paragraph 197 of Somerville does provide some assistance to the pursuer. If some of the pursuer’s claim is time‑barred in relation to handcuffing during certain hospital visits and admission but others not, then there is a danger that only a limited part of a bigger picture would be scrutinised. Further, the pursuer’s initial complaint was about a policy that was in place until 2014. His initial Judicial Review proceedings were not time‑barred because the policy was ongoing when he raised the action. While the defenders are perfectly entitled to raise the issue of time‑bar following the minute of amendment to transmute the case into an ordinary action, the timeous raising of the initial Judicial Review complaint is a factor in the overall assessment at the section 7(5)(b) stage. On the other hand, I accept that the likelihood or otherwise of a successful and meaningful award being made is a relevant factor on a decision of extension of time - A v Essex County Council [2011] 1AC 28 at paragraphs 168-169. Even had I decided that the pursuer’s case as presently pled was just sufficient to fix a Proof Before Answer, standing his record as a prisoner I would have been less likely to extend time than in a case where the merits appeared strong. I would also have taken into account the balance of prejudice and in particular the prejudice to the defenders of allowing a case to proceed out of time where the specification of what each incident is said to have entailed is fairly inadequate. The pursuer had received legal advice that he might have a claim in September 2012 and had not raised any proceedings until June 2013. On balance, had I been allowing the case to proceed at all, I would not have considered it equitable to extend time such that the third defenders would remain in the action. It is accordingly unnecessary to address the arguments about mora, taciturnity and acquiescence.
(v) The pursuer’s motion for decree de plano
[57] It follows from the views I have expressed in relation to the issues already dealt with that I regard the pursuer’s motion for decree de plano as ill-founded. There does seem to have been some misunderstanding on the pursuer’s side about the full consequences of this case having been amended to become an ordinary action. As I have already indicated, while some aspects of the previous circumstances of the first defenders’ policy in relation to restraining prisoners on their departure from prison to hospital might remain relevant as part of a background narrative, the application of that policy cannot found a claim for declarator that an individual’s human rights have been breached and for damages as just satisfaction therefor.
Disposal
[58] For the reasons given, I have reached the conclusion that the pursuer has not pled a relevant case against any of the defenders. I will sustain the pleas-in-law necessary to give effect to my decision and dismiss the action. I will reserve meantime all questions of expenses.