| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| | [2013] CSIH 73 |
Lord Eassie Lord Brodie Lord Wheatley | XA114/08 OPINION OF THE COURT delivered by LORD EASSIE in the appeal by KEVIN RUDDY Pursuer and appellant; against (FIRST) THE CHIEF CONSTABLE, STRATHCLYDE POLICE; and (SECOND) THE LORD ADVOCATE Defenders and Respondents: _______________ |
Act: Wolffe QC, McBrearty; Balfour & Manson (for Taylor & Kelly, Coatbridge)
Alt: Macpherson, Solicitor Advocate; Simpson & Marwick (first defender)
Anderson QC, Ross; Scottish Government Legal Directorate (second defender)
3 September 2013
Introductory
[1] The pursuer and the appellant in this action brought in the sheriff court in Glasgow seeks damages from both the Chief Constable of the Strathclyde Police and the Lord Advocate.
[2] The claims advanced by the pursuer flow from matters, largely in dispute, which followed the arrest of the pursuer on 6 September 2004, in execution of an arrest warrant, by police officers of the then Tayside Constabulary in Perth. The pursuer was taken by those officers to Perth Police Station to await being taken by officers of the then Strathclyde Constabulary to Partick Police Station in Glasgow. In brief summary, the pursuer avers that he was mistreated by those officers of the Strathclyde Constabulary. At the police station in Perth they applied handcuffs too tightly. They obliged him to walk over a wet car park to a police car when he was barefoot and, having been stripped of his clothing by the police, naked but for a pair of paper underpants. On the outskirts of Perth the police car stopped in a layby, whereupon he was struck repeatedly on his head and body by the Strathclyde police officers using their hands and feet. During the journey to Glasgow he was handcuffed so tightly as to cause him pain but the escorting police constable refused to loosen the handcuffs. He was further assaulted during the journey and also immediately prior to entering the Partick Police Office. The pursuer avers that he suffered injury consequent upon the assault and mistreatment of which he complains. He was in due course, on 10 September 2004, examined by a practising general medical practitioner and forensic medical examiner and medical legal consultant. The report which the doctor in question prepared describes a variety of injuries which he noted upon that examination and it was lodged in this court process.
[3] The pursuer avers that the actings by the officers of the Strathclyde Constabulary of which he complains were not justified by any conduct on his part (averments by the Chief Constable respecting the pursuer's alleged unruly behaviour being denied); they constituted an assault for which he is entitled to damages ex delicto; they also constituted a breach of article 3 of the European Convention of Human Rights and Fundamental Freedoms - ("ECHR") - by reason of their amounting to the subjection of the pursuer to degrading treatment by agents of the state for which he is similarly entitled to relief under the Human Rights Act 1998 in the form of damages.
[4] It is not - and seemingly never really was - in dispute that as respects those aspects of the pursuer's claim (which are effectively covered by the averments in articles 2-7 of the condescendence of the initial writ and in pleas‑in‑law 1-3 for the pursuer) and which are reflected in the first crave of the initial writ which seeks damages of £10,000 against the Chief Constable alone, factual enquiry by way of proof before answer was, and remains, necessary.
[5] However, the pursuer also advances a further claim which is the subject of the second crave of the initial writ. In that crave, in its amended form, the pursuer seeks payment by the Chief Constable of the Strathclyde Police and the Lord Advocate jointly and severally of a sum of money as damages constituting just satisfaction under the Human Rights Act 1998 in respect of what are averred to be failures by those defenders properly to investigate the assault and degrading treatment which the pursuer avers were inflicted upon him. Those failures are said to constitute a discrete and separate claim of a breach of the right to an effective investigation which is conferred by article 3 ECHR.
[6] Both defenders challenge the relevancy of the averments made by the pursuer in support of this branch of the action. Following a debate heard over a number of non‑continuous days the sheriff (Deutsch) on 5 June 2007 upheld those challenges. As respects the case pled against the Chief Constable, he excluded from probation the averments relating to this branch of the action (articles 8 - 12 of condescendence inclusive); he partially sustained the Chief Constable's plea to the relevancy to that extent and refused the second crave of the initial writ in so far as directed against the Chief Constable. As respects the Lord Advocate, who was of course affected only by the second crave, he upheld the preliminary plea on behalf of the Lord Advocate and dismissed, as irrelevant, the action in so far as it is directed against the Lord Advocate.
[7] The pursuer appealed that decision to the sheriff principal. On 25 April 2008 the sheriff principal (Taylor) refused the appeal. He adhered to the sheriff's interlocutor but in addition excluded from probation the averments in article 12 of the condescendence, which parties were agreed also fell to be so excluded were the decision of the sheriff to be correct.
[8] The pursuer thereafter appealed from the decision of the sheriff principal to the Court of Session. When the appeal came to be heard before an Extra Division, the court came to the view that the action, in respect of its combination of claims, was incompetent - [2011] CSIH 16; 2011 SC 527. That decision was reversed by the Supreme Court of the United Kingdom - [2012] UKSC 57; 2013 SC (UKSC) 126 - and the case was remitted back to the Court of Session to hear the substance of the appeal by the pursuer against the judgment of the sheriff principal.
[9] This opinion is given following the hearing for which the case was returned to the Court of Session by the Supreme Court of the United Kingdom. As will be appreciated, that hearing was concerned only with the relevancy of that branch of the pursuer's case which claims that - in addition to any damages to which he may be found entitled, after proof, for the assaults and degrading treatment to which he avers he was subjected - he was, in any event, entitled to a further sum because the Chief Constable and the Lord Advocate failed to conduct a proper investigation into the substantive complaints. The existence of such an ancillary or adjectival obligation, where a substantive claim of breach of article 3 is made, to investigate that claim properly and effectively is not disputed by either of the defending parties.
The investigations
[10] While the averments respecting the investigatory process contained in article 8 and following of the condescendence and the averments in answer are extensive and at times somewhat diffuse, in the debate before us there appeared to be something approaching a consensus that matters could be distilled thus.
[11] The complaint investigation process was initiated by the Strathclyde Police on their receipt in November 2004 of intimation of an application by the pursuer for legal aid to pursue an action against the police for damages by way of reparation for the assaults and the other mistreatment which he averred had been committed by them on him. Strathclyde Police recognised - it is accepted entirely correctly - that this intimation constituted an allegation which fell to be investigated. The Strathclyde Police passed the allegation to their complaints and discipline branch. That branch in turn referred the matter to the procurator fiscal. On or about 10 January 2005 the procurator fiscal instructed the Strathclyde Police to conduct an investigation.
[12] The Strathclyde Constabulary appointed a member of that constabulary, namely an Inspector Darroch, who was assigned to the complaints and discipline branch, to investigate the complaint. By letter of 13 January 2005, Strathclyde Police advised the pursuer's solicitors of this and gave a telephone number whereby contact could be made directly with Inspector Darroch. On 2 February 2005 the pursuer's solicitors provided the complaints and discipline branch of the Strathclyde Police with a copy of the medical report on the pursuer's injuries, which they had obtained following his examination on 10 September 2004 and informed the police of the pursuer's consent to their speaking with the doctor who had compiled that report. They also sought confirmation that the fruits of the investigation would be made known to the pursuer. By letter of the same date the solicitors acting for the pursuer wrote to the legal services department of Strathclyde Police formally requesting access to the information obtained by the investigation and they wrote also to the procurator fiscal in broadly the same terms. On 10 February 2005 Strathclyde Police advised the pursuer's solicitors that the information obtained in the course of the investigation being carried out by Inspector Darroch was "confidential as between [the complaints and discipline branch] and the procurator fiscal. Accordingly it will not be made available to your client." On 14 March 2005 the Strathclyde Police wrote to the pursuer's solicitors advising that Inspector Darroch's report had been submitted to the area procurator fiscal for Glasgow. On 22 March 2005 the area procurator fiscal responded to a request under the Freedom of Information (Scotland) Act 2002 from the pursuer's solicitors for information respecting the investigation by refusing the request. On 10 May 2005 the pursuer was interviewed by a member of the staff of the procurator fiscal's office in Glasgow.
[13] The investigation then being judged completed, by letter of 6 June 2005 copied to the pursuer's solicitors, the area procurator fiscal wrote to the pursuer stating, after certain introductory remarks:
"My responsibility for dealing with complaints against the Police relates to consideration of criminal proceedings in connection with those complaints which involve allegations inferring criminal conduct on the part of Police Officers. Having considered the statements and reports relating to your complaint I am satisfied that the available evidence would not justify any criminal proceedings against any Police Officer."
The letter did not elaborate in any respect on the basis for its author having that satisfaction.
[14] The response of the Strathclyde Police following the conclusion of the investigation by Inspector Darroch was conveyed to the pursuer's solicitors by a letter to them of 22 June 2005. That letter refers at the outset to the area procurator fiscal's decision that she would not initiate any criminal proceedings against any of the police officers involved. The letter then observes that the pursuer's complaint made "four non‑criminal allegations concerning his involvement with the Police on 6 September 2004". The letter then addresses those as being the allegations (a) that within the Perth Police Station the handcuffs were too tightly fixed; (b) that within that police station, the police were uncivil; (c) that the pursuer was constrained to walk across the parking area clad only in paper underpants; and (d) that on the journey from Perth to Glasgow the police officers used unnecessary force. While the letter has a relatively detailed discussion of those matters, essentially accepting the accuracy of what was said by the police officers, I do not think it necessary to set out at length the terms of that letter (which is no. 6/36 of process) since the principal point made respecting that letter by counsel for the pursuer was that it singularly failed to address the complaint by the pursuer that he had been repeatedly assaulted and whether disciplinary proceedings had ever been considered as being open in respect of that complaint.
Submissions
(a) The pursuer
[15] Mr Wolffe, for the pursuer and appellant, moved at the outset that the court recall the interlocutors of both the sheriff and the sheriff principal and remit for a proof before answer with all pleas left standing. He pointed out that the appeal was concerned with the challenge made to the relevancy of the pursuer's averments respecting the second branch of the action. In judging of the validity of the defenders' challenge to the relevancy of those averments, one had to apply the usual test - whether, taking the averments pro veritate, the claim was bound to fail.
[16] The claim in contention - namely the second crave of the initial writ - had two principal branches. The first branch was concerned with the absence of structural independence in such investigation as was carried out by Inspector Darroch, who was a member of the same police force as the officers against whom the complaints of assault and mistreatment were directed. The second branch was concerned with the absence of allowance of proper participation by the pursuer in the investigation - in particular, given the absence of disclosure of the report by Inspector Darroch, the failure in turn by the area procurator fiscal to give any adequate reason for her decision not to institute any prosecution of the Strathclyde police officers in question and the failure by the Chief Constable to give any reason for not taking, or even considering, disciplinary proceedings against the officers in question in respect of the assaults of which the pursuer complained. Counsel acknowledged that the two branches might be linked in the sense that if satisfaction of the need for effective participation had been properly met by the giving of full, adequate and cogent reasons for the decisions not to prosecute and not to take any disciplinary proceedings, one might be able to say that by some means the want of structural independence in the conduct of the investigation was in fact overcome in the peculiar circumstances of the case in issue.
[17] Counsel referred to the domestic legislative framework. He pointed to inter alia the provisions of section 17(2) of the Police (Scotland) Act 1967, whereby any constable of a police force was always subject to the direction of the chief constable. The Police (Conduct) (Scotland) Regulations[1] 1996 enabled investigation by an officer of a different force, but the regulations did not require it. It was thus accepted that it could not be said there was any breach of those domestic regulations. But that did not matter, because the whole contention for the pursuer was that the agencies of the state had failed in their obligation under article 3 ECHR to conduct an independent investigation.
[18] The obligation on a contracting state to conduct independent and effective investigation - as an adjunct to the central or substantive obligations imposed under articles 2 or 3 ECHR - was well established in the cases which had been decided by the European Court of Human Rights - ("ECtHR"). Counsel referred to the judgment of the Grand Chamber in Ramsahai v The Netherlands (2008) 46 EHRR 43. While that case was an article 2 case (involving death at the hands of the police) the principles set out at paragraphs 321 and following of the judgment applied also to a claim of mistreatment contrary to article 3 ECHR. Counsel supplemented that reference by placing before this court the judgment of the Grand Chamber of 13 December 2012 in El‑Masiri v The Former Yugoslav Republic of Macedonia (application no 39630/09), particularly at paragraphs 182 and following. Counsel also drew to the attention of the court the judgment of the ECtHR of 5 June 2012 in Buntov v Russia (application no 27026/10), particularly at paragraphs 120 and following, with a further reference to paragraph 80 of the decision of the ECtHR of 16 September 2010 in Tigran Ayrapetyan v Russia (application no 75472/01). It was clear from those statements of principle that an effective investigation which complied with the obligation under the Convention required to have both structural and practical independence; and to afford effective participation.
[19] The need for structural dependence, in addition to any practical independence was, submitted counsel, particularly evident from the judgments of the ECtHR in the judgments of 2 October 2012 in Najafli v Azerbaijan (application no 2594/07); of 9 October 2012 in Mikiashvili v Georgia (application no 18996/06); of 14 October 2010 in Georgiy Bykov v Russia (application no 24271/03); and of 21 October 2008 in Çağlayan v Turkey (application no 30461/02). The earlier decision of 24 May 2007 in Zelilof v Greece (application no 17060/03), upon which the defenders had relied before the sheriff and the sheriff principal, was not in the mainstream of the jurisprudence of the ECtHR which now firmly recognised structural independence as an important requirement for full compliance with the adjectival obligations flowing from article 3. Departmental separation might go some way, but it did not in itself achieve the requisite structural independence. There were, of course, ways whereby a state could inject independence into any system of complaints against maltreatment by the police. Thus, in England and Wales, the United Kingdom government had set up the Independent Police Complaints Commission. Counsel then referred to various aspects of the structure of the independent commission which had been established in England and Wales. For example, the commission was empowered to investigate by itself; or to require investigation under its management or supervision; and at the end of the day any complainer had a right of appeal respecting the investigation conducted by the commission directly or under its management and supervision.
[20] In reaching his judgment in the present case, the sheriff principal erred in paragraph [9] of his note in expressing the opinion that:
".... the appointment of Inspector Darroch, as a member of the Complaints Branch of Strathclyde Police, provided the necessary independence for this investigation to be said to be effective and thus compliant with the Convention."
It might well be that the sheriff principal was correct if he were saying simply that Inspector Darroch was in some practical sense independent; but that did not address the fundamental requirement for structural or hierarchical independence, which was not addressed by the sheriff principal.
[21] Turning to the second branch of the argument for the pursuer, Mr Wolffe submitted, in summary, that participation, in the sense of effective involvement of the complainer and being afforded a properly reasoned decision, was an important part of the performance by a contracting state of its obligations under the Convention. Reference was made to the ECtHR decisions of 19 June 2012 in Hajnal v Serbia (application no 36937/06); 5 June 2012 in Buntov v Russia; 29 July 2010 in Kopylov v Russia (application no 3933/04); and 10 April 2007 in Barta v Hungary (application no 26137/04). Counsel also referred the court to R (Green) v Police Complaints Authority [2004] 1 WLR 725 and R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653. Counsel explained that, under this branch, he was not maintaining that in this case the pursuer had a right of access to every part of the file of the investigation. His submission was essentially founded on the approval by the House of Lords in R (Green) v The Police Complaints Authority, per Lord Rodger of Earlsferry at paragraph 69, of what had been said by Hale LJ in the Court of Appeal that in complaints against the police:
"the best safeguard for all concerned is a fully reasoned decision, giving an account of the evidence received, any conclusions reached on disputes of fact, applying the appropriate law to the facts found, and explaining the considerations which have affected any discretion exercised. Only rarely should the reasonable recipient of such a decision be so suspicious as to wish to see the underlying evidence on which it is based. I would therefore conclude that a fully reasoned decision is the best way to safeguard the integrity of and promote individual and public confidence in the complaints procedure."
The giving of a fully reasoned decision addressing all the aspects to which Hale LJ had referred was thus important for the purpose of ensuring proper accountability and hence that the investigation was one which could be shown by the state to be compatible with its obligations under articles 2 or 3 as the case may be.
[22] On that approach, the letter from the area procurator fiscal of 6 June 2005 was manifestly insufficient. It simply said that the author was satisfied "that the available evidence would not justify criminal proceedings against any Police Officer". That decision left entirely unclear whether the author considered that the "available" evidence was insufficient as a matter of law; or whether it might be sufficient but was viewed by the author as untruthful or unreliable. On the aspect of corroboration, there was supporting evidence available from the medical report. But fundamentally, since the report by Inspector Darroch was not disclosed, despite requests for its disclosure, the pursuer had no means of knowing what constituted the "available" evidence, to which the area procurator fiscal said she had had regard. The sheriff principal simply assumed that the reference to available evidence was directed to sufficiency; and likewise wrongly assumed that it was plain there was no support for the pursuer's account, thereby ignoring the medical report - which was indeed confirmatory of the injuries sustained by the pursuer.
[23] The response of 22 June 2005 from the Chief Constable respecting the complaint was equally unsatisfactory. First, it expressly set aside all of the pursuer's complaint that he had been repeatedly assaulted on the simple basis of the area procurator fiscal's decision that there should be no criminal proceedings. Were it to have been the case - as the sheriff principal seemed to infer - that the only obstacle to criminal proceedings was a lack of corroboration, that obstacle would not apply to any disciplinary proceedings. That matter was not addressed. Furthermore, even in the assessment of the "non‑criminal" complaints the Chief Constable completely ignored the medical evidence; and no reason was offered for disbelieving the pursuer's account as opposed to that of the police officers.
(b) The Chief Constable
[24] In response to what had been said by counsel for the pursuer, Mr Macpherson, the solicitor advocate for the Chief Constable, pointed out that the appeal was essentially one about the relevancy of the pursuer's averments. He then submitted, in summary, that while the decisions of the ECtHR established that the state's obligation was to conduct an independent and effective investigation into a complaint of a breach of article 3 ECHR which involved also proper participation, all of the cases were fact specific and did not dictate what was actually required. So, beyond that, nothing was to be derived from the jurisprudence of the ECtHR. Mr Macpherson further postulated that were a complaint to be upheld by an investigation conducted by an officer of the same force, albeit not structurally independent, that would, from the complainer's perspective, have been an effective investigation.
[25] The solicitor advocate for the Chief Constable further observed that the significant points in the pursuer's averments were that the investigation had been carried out by the Strathclyde Police, though, he contended, partly under the direction of the procurator fiscal; the procurator fiscal had concluded that the available evidence did not justify a prosecution for assault; the police investigation found other complaints not be to be made out; and that no misconduct proceeding should be instituted. The solicitor advocate for the Chief Constable then submitted that the court was entitled to consider whether it would have made any difference were any investigation to have been conducted by a different force, or if misconduct proceedings had been taken. The pursuer did not aver that any different outcome would have been reached had either of those steps been taken. So he could not aver a relevant result.
[26] The solicitor advocate for the Chief Constable then observed, with respect to the authorities to which reference had been made, that the call by the ECtHR for structural independence in the form of investigation by a body separate from the police force against which whose members the complaint was made was either qualified by the adverb "generally" (Ramsahai, paragraph 325) or was underscored by inadequacies in the investigation (for example Najafli, where the investigation by the police force had failed to identify the perpetrators of the alleged abuse). He further submitted that of the five principles set out by the ECtHR at paragraphs 120 and following in Buntov v Russia, thoroughness and expedition were not in issue; there was practical independence in the sense that it was not averred by the pursuer that Inspector Darroch had not sought to investigate independently. The pursuer and his solicitors were in communication with the authorities and thus had practical participation; and the letters from the area procurator fiscal of 6 June 2005 and 22 June 2005 respectively gave in cumulo an adequately reasoned decision.
(c) The Lord Advocate
[27] Counsel for the Lord Advocate also began with the observation that the appeal was about the relevancy of the pursuer's pleadings. Those pleadings, he submitted, lacked specification. The pursuer simply averred that there was a lack of independence in the investigation and insufficient participation by the pursuer without specifying what he maintained should have been provided.
[28] Mr Anderson went on to submit that in all the Strasbourg cases in which it had been found that there was a want of independence in the investigation, that finding proceeded in the light of an examination of the whole circumstances. In paragraph 9 (iii) of its judgment in R (on the application of D) v Secretary of State for the Home Department [2006] HRLR 24, the Court of Appeal in England and Wales listed the minimum requirements to be derived from the judgments of the ECtHR in Jordan v United Kingdom (2003) 37 EHRR 2 and Edwards v United Kingdom (2002) 35 EHRR 19 and also from the views expressed in the House of Lords in R (Amin) v Secretary of State for the Home Department. However, that list was preceded by subhead (ii) of the paragraph in which the Court of Appeal observed that the Convention did not adopt a prescriptive approach. Importantly, said counsel, in paragraph 10 the Court of Appeal went on to accept that "even the minimum requirements involve a degree of flexibility". The requirements of independence and adequacy of participation were simply components in the overall effectiveness of the investigation. Reference was made to paragraph [40] of the judgment of Underhill J in R (Saunders) v Independent Police Complaints Commission [2009] 1 All ER 379.
[29] Counsel for the Lord Advocate volunteered his acceptance that, if it were correct that under no circumstances could an investigation into a complaint of maltreatment by the police be carried out by a branch of a police force within a hierarchical structure leading to a common head, and in particular, that investigation of the pursuer's complaints by any member of the Strathclyde Police Force in itself constituted, in itself, a breach of the state's obligation by reason of lack of structural independence, then the argument advanced on behalf of the pursuer by Mr Wolffe succeeded. However, developing his earlier submissions on independence as being a factor in the overarching requirements of effectiveness, counsel for the Lord Advocate submitted that the decisions of the ECtHR did not vouch the absolute proposition for which counsel for the pursuer had contended.
[30] Counsel cited in particular Zelilof v Greece in which, at paragraph 58, the ECtHR had endorsed the sufficiency of committing the investigation to the special complaints agency of the police force in question. Reference was also made to Petropoulou-Tsakiris v Greece (2009) 48 EHRR 47 in which, although there was a lack of independence, there was also held to be a clear violation of the substantive obligation under article 3 ECHR. It was not to be read as authority for the proposition that one police force could not investigate the alleged actions of other members of that force. In Timofejevi v Latvia (application no 45393/04), a case involving the same police force investigating the allegation, the ECtHR in its judgment of 11 December 2012 had confined itself to expressing "serious doubts" about the independence of any such investigation. Under reference to broadly similar language in the English version of the judgments in the other cases to which reference had been made, counsel submitted that it could not be said that the ECtHR had ever plainly stated that investigations involving officers of the same police force could never be independent. Thus in Çağlayan v Turkey, at paragraph 49, the court had referred to the appointment of senior police officers as investigators as being "inappropriate, given that the allegations were directed against the police force of which they are members."[2]
[31] Accordingly, it was submitted for the Lord Advocate that in order for the pursuer to make a relevant case under this branch of his action it was necessary for him to set out specifically how matters ought to have been addressed, ensuring the independence which he desiderated, and how, if that desiderated course had been pursued a different outcome would have resulted.
[32] So far as the limb of the pursuer's case respecting effective participation was concerned, counsel for the Lord Advocate disputed whether the articulation set out by Lord Bingham of Cornhill at paragraph 20(8) and (9) of his speech in R (Amin) v Secretary of State for the Home Department, which was concerned with an article 2 case, could simply be "read across" to an article 3 case. Different considerations might apply. The pursuer's case on lack of effective participation was, said counsel for the Lord Advocate, again simply a bald assertion. The pursuer had been interviewed by a member of the staff of the procurator fiscal. Essentially the incidents involved but three people. Of what more, asked counsel, could the pursuer ever have wished by way of effective participation?
[33] Insofar as the assertion of an absence of effective participation focussed, or boiled down to, alleged deficiencies in the reasons given by the area procurator fiscal and the police respectively for not taking action, counsel for the Lord Advocate acknowledged that that contention received support - and indeed in the submission of counsel for the Lord Advocate was entirely founded upon - what had been said by Hale LJ in the Court of Appeal in The Queen (on application of Green) v Police Complaints Authority and others. Counsel for the Lord Advocate submitted that her Ladyship had been setting out a "gold standard", not a mandatory rule.
[34] The reasons collectively provided by the state in the present case were adequate. It was necessary to read the letter from the area procurator fiscal declining to take proceedings together with that from the Strathclyde Police of 22 June 2005. While the former was "terse", any doubt was removed by the latter which, while not dealing with the allegations of assault, made plain that the pursuer's complaints were dismissed because the police investigator was not prepared to place any credibility in what was said by the pursuer.
(d) Proposed minute of amendment for the pursuer
[35] It is essential to record that, perhaps in response to the tenor of a part of the discussion which had taken place between counsel for the pursuer and the bench on the first day of the argument for the pursuer, on the second day of his submissions counsel for the pursuer tendered a short minute of amendment which sought to insert a new, first crave in these terms:
"For declarator that the pursuer's allegation that on 6 September 2004 he was assaulted at the hands of officers of Strathclyde Police was not the subject of an effective investigation and, accordingly, the defenders are in breach of the obligation to carry out such an investigation under article 3 of the European Convention on Human Rights."
The proposed minute of amendment also sought to introduce a new, preliminary plea to the relevancy of the offences in these terms:
"2. By deleting the existing fifth and sixth pleas‑in‑law and inserting as a new fifth plea‑in‑law:
'The averments for the first and second defenders, insofar as directed to the issue of whether the pursuer's allegations of assault were the subject of an effective investigation, being irrelevant et separatim lacking in specification, the pursuer is entitled to declarator as first concluded for.'"
The motion to allow the amendment both to be received and allowed was opposed by the solicitor advocate for the Chief Constable and by counsel for the Lord Advocate. Mr Macpherson's opposition on behalf of the Chief Constable was described by him as "formal". He said that it might be expedient, dependent on the view of the court, to allow the amendment and to give effect to its terms. However counsel for the Lord Advocate pointed out that the relevancy of the defences had not been argued in the courts below. While it might well be that if, at its highest, the submission advanced by Mr Wolffe on behalf of the pursuer and appellant was correct on the question of structural independence, there was little more to be said. But it was not to be assumed that there was no answer to the issue of structural independence; and on the question of participation the Lord Advocate had made averments which called for inquiry.
[36] Mr Wolffe explained that the minute of amendment was tendered essentially on the basis that having such a minute of amendment before it might assist the court to dispose of the case were it to reach a clear view (favourable to the pursuer) as to the legal position. In light of that explanation and the position of the defending parties, the court resolved to defer consideration of the proposed amendment as a part of its wider consideration of the substantive issues argued in this appeal.
Discussion
[37] As we have already recorded, it is not in dispute that the averments made by the pursuer respecting his mistreatment by officers of the then Strathclyde Police constitute a claim to have been a victim of a breach of the substantive protection against mistreatment by agents of the state which is conferred by article 3 ECHR. Those averments require yet to be the subject of proof before the sheriff.
[38] It is equally not in dispute that where a citizen claims to have been the victim of conduct or treatment offending against article 3 ECHR, the article, read with article 1, has been the subject of a settled interpretation by the ECtHR as conferring in addition to the primary or substantive protection, an ancillary or adjectival obligation on the state to conduct an effective investigation into such a claim. That interpretation is based on the obvious reason that such an ancillary or adjectival obligation is an important means of rendering the substantive protection more effective.
[39] As counsel for the pursuer, the solicitor advocate for the Chief Constable, and counsel for the Lord Advocate all appeared to agree, the decision of the Grand Chamber of the ECtHR in Ramsahai and others v The Netherlands contains at paragraphs 321 and following a recent statement of the governing principles which have been developed in the jurisprudence of the ECtHR:
"(a) Applicable principles
321. The Court has stated the applicable principles as follows (see, as a recent authority, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 110 and 112-13, ECHR 2005‑VII, case-law references omitted):
'110. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force ... The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ...
...
112. For an investigation into alleged unlawful killing by State agents to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice ...
113. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible ... The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. The investigation's conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the 'no more than absolutely necessary' standard required by Article 2 § 2 of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness ...';
and also as follows (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002‑IV):
'140. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ...'
322. The Court would observe at this point that the obligation to carry out a prompt and effective investigation when individuals have been killed as a result of the use of force, and to bring, or enable, such proceedings as may be appropriate to the case, is not dependent on whether the said use of force itself is ultimately found to constitute a violation of Article 2 of the Convention.
(b) Effectiveness of the investigation
123. The Court finds it opportune to clarify the scope and content of its examination of the effectiveness of the investigation.
324. In order to be 'effective' as this expression is to be understood in the context of Article 2 of the Convention, an investigation into a death that engages the responsibility of a Contracting Party under that Article must firstly be adequate. That is, it must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of this standard (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 223, ECHR 2004‑III).
325. Secondly, for the investigation to be 'effective' in this sense it may generally be regarded as necessary for the persons responsible for it and carrying it out to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Tahsin Acar, cited above, § 222). What is at stake here is nothing less than public confidence in the State's monopoly on the use of force."
[40] The judgment in Ramsahai, which was issued on 15 May 2007 was seemingly not before the sheriff principal. The same principles were largely reiterated by the Grand Chamber on 13 December 2012 in its judgment in El-Masiri v FYROM:
"(a) Procedural aspect of Article 3: lack of an effective investigation
(i) General principles
182. The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention', requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII; Corsacov v. Moldova, no. 18944/02, § 68, 4 April 2006; and Georgiy Bykov, cited above, § 60).
183. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others, cited above, § 103 and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts)). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999‑IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Boicenco v. Moldova, no. 41088/05, § 123, 11 July 2006).
184. Furthermore, the investigation should be independent from the executive (see Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).
185. Lastly, the victim should be able to participate effectively in the investigation in one form or another (see, mutatis mutandis, Oğur, cited above, § 92; Ognyanova and Choban v. Bulgaria, no. 46317/99, § 107, 23 February 2006; Khadzhialiyev and Others v. Russia, no. 3013/04, § 106, 6 November 2008; Denis Vasilyev v. Russia, no. 32704/04, § 157, 17 December 2009; and Dedovskiy and Others v. Russia, no. 7178/03, § 92, ECHR 2008)."
[41] The matter in dispute in the present case concerns two of those principles, namely (a) the independence of the investigator or the investigating body and those whom it employs in the investigation and (b) the effective participation of the person or persons concerned by the alleged breach of the protection. Both principles are important elements in judging whether there can be public satisfaction that the state has properly, thoroughly and impartially investigated the allegation of misconduct on the part of certain of its agents.
[42] The pursuer avers that, in the present case, the investigation by Inspector Darroch lacked the requisite structural or hierarchical independence because he was an officer of the same police force as the officers against whom the allegations of mistreatment are laid. The decision of the sheriff principal, which endorses the sheriff's decision to uphold the defender's preliminary pleas to the relevancy of those averments, thus amounts to holding in advance of any inquiry that the complaint of lack of structural independence is irrelevant. Certain reasons are given by the sheriff principal at paragraph [9] of the note appended to his interlocutor for reaching the view that the averments that the investigation lacked independence, including lacking structural independence in respect that it was carried out by an officer of the same police force, are irrelevant. Those reasons are (i) that Inspector Darroch "was certainly independent of those officers involved in the events"; (ii) that there was "no averment that this was a systemic failure"; (iii) that there was no reason why the Chief Constable would have an interest to influence the outcome and (iv)that the officers under investigation were of a lower rank in the force than the inspector.
[43] As counsel for the pursuer pointed out, these reasons do not address the averred lack of structural or hierarchical independence. We would observe, in regard to criticism of want of examination of the complaint of a lack of structural independence, that the facts that Inspector Darroch was not one of the officers against whom the complaint of misconduct was directed and that those officers were of lower rank are really nothing to the point. Likewise, while it is not suggested by the pursuer that in this particular case the Chief Constable had any particular personal axe to grind against the pursuer, the essence of the pursuer's contention is that, in general terms, a hierarchical head may be thought to have a potential concern and disposition to avoid findings adverse to those under his immediate direction, and for whose actions he is answerable both hierarchically and in terms of potential civil liability.
[44] We appreciate of course that what is said by the sheriff principal in paragraph [9] of his note must be taken in the whole context of that note and thus that it is appropriate to have regard to the preceding paragraph, namely paragraph [8]. In that paragraph, having adverted to the approval given by Lord Bingham in his speech in R (Amin) v Secretary of State for the Home Department to what had been said by the ECtHR at paragraph 106 in its judgment in Jordan v United Kingdom (2003) 37 EHRR 2, and having placed stress on the occurrence in that paragraph of the judgment of the court in Strasbourg of the adverb "generally", the sheriff principal then finds assistance in paragraph 58 of the judgment of the ECtHR in Zelilof v Greece. That paragraph reads:
"58. As regards the present case, the Court observes that both an administrative inquiry and judicial proceedings were launched after the impugned events. As far as the administrative investigation is concerned, the Court notes, firstly, that it was entrusted to the special agency of the police dealing with disciplinary investigations and not assigned to a police officer serving in the same police station as the persons subjected to the disciplinary investigation. The Court acknowledges that this is an element that reinforces the independence of the inquiry, as the agent conducting it was, in principle, independent of those involved in the events."
Although he does not say so, it might be inferred that the sheriff principal concludes from that passage that a form of administrative arrangement within a single hierarchy for directing complaints to some separate department will satisfy any need for structural independence and that the ECtHR had so ruled. Such an inference would, we think, be consistent with the sheriff principal's directing his attention in the ensuing paragraph largely to his views of the practical independence of Inspector Darroch.
[45] The decision of the ECtHR in Zelilof v Greece was given on 24 May 2007 and appears possibly to have been presented to the sheriff principal as some binding pronouncement that allocation of a complaint of mistreatment to a department of the same police force described as a complaints department satisfied any need for structural independence. It is, we think, appropriate to exercise a certain caution about treating judgments of the ECtHR in the same way as one is accustomed to treating judgments of the courts in this country, and in the neighbouring jurisdictions and other common law jurisdictions. The notion that the court enunciates the common law, and that the factual situation in which the ruling is given creates a form of precedent, are deep-seated in the thinking and approach of lawyers and judges in those jurisdictions. But the ECtHR is not such a court of "common law" jurisdiction. Its function is to interpret and apply a legislative text, namely the ECHR and its protocols. In doing so it enjoys the function of developing the principle or principles enunciated in the text in a potentially wide and liberal manner. But a decision on a particular factual situation does not necessarily amount to a binding precedent. One has to have regard to the prevailing general run of decisions and their underlying reasoning, and, of course, the distillation from time to time provided by the ECtHR, particularly in Grand Chamber decisions.
[46] Having regard to the authorities to which our attention was directed, it appears to us that Mr Wolffe's submission that Zelilof v Greece is not in the mainstream of the ECtHR cases has force. It seems to us that, at least since that decision, the jurisprudence of the ECtHR has been supplemented and developed in the sense that some greater emphasis is now placed on the need - in the wider public interest - for structural independence. First, we think it may be noted that while in the factual circumstances of Ramsahai v Netherlands the conduct of the investigation came after an interval of some 15 and a half hours from the incident to be under the control of the national police internal investigations department, and shortly thereafter under the superintendence of the public prosecutor, the Grand Chamber of the ECtHR was critical of the fact that the initial investigatory work had been carried out by the local Amsterdam/Amstelland Police and found, on that account, a violation of the convention.
[47] That greater emphasis is also, in our view, apparent from the judgment given on 2 October 2012 in Najafli v Azerbaijan. The ECtHR said at paragraph 52:
"52. Having noted the above, the Court will now turn to what it considers the most problematic aspect of the investigation conducted in the present case. The Court has repeatedly stressed that the procedural obligation under Articles 2 and 3 requires an investigation to be independent and impartial, both in law and in practice (see paragraph 46 above). The Court notes that the Sabail District Prosecutor's Office, which was formally an independent investigating authority and which conducted the investigation in the present case, requested the Sabail District Police Department to carry out an inquiry with the aim of identifying those who had allegedly ill-treated the applicant. As such, the investigating authority delegated a major and essential part of the investigation - identification of the perpetrators of the alleged ill‑treatment - to the same authority whose agents had allegedly committed the offence. In this respect, the Court finds it of no real significance that, while the alleged perpetrators were officers of the Riot Police Regiment of the Baku Police Department, it was another police department which was requested to carry out the investigation. What is important is that the investigation of alleged misconduct potentially engaging the responsibility of a public authority and its officers was carried out by those agents' colleagues, employed by the same public authority. In the Court's view, in such circumstances an investigation by the police force of an allegation of misconduct by its own officers could not be independent in the present case (compare, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 295-96, ECHR 2007‑II; Aktaş v. Turkey, no. 24351/94, § 301, ECHR 2003‑V (extracts); and McKerr, § 128, cited above)."
We have also referred, by footnote, to paragraph 30 supra to what was said respecting structural independence by the ECtHR in Çağlayan v Turkey. But, for convenience, we repeat that text here:
"The Court reiterates its previous findings in cases against Turkey that bodies like the Provincial Administrative Council and Police Disciplinary Board attached to the Mugla Governor's office in the present case, which are in charge of investigations concerning similar allegations directed against security forces, cannot be regarded as independent, as they are made up of civil servants hierarchically dependent on the governor, an executive officer linked to the very security forces under investigation (see among others, Ipek v Turkey no. 25764/94, at para. 174, 17 February 2004)."
[48] Further, in its judgment in Mikiashvili v Georgia the ECtHR observed at paragraph 87 :
"87. The Court notes at the outset that all the investigative measures were conducted by the Investigation Department of the Ministry of Justice, the very same Ministry which was, at the material time, in charge of the prison system. Their findings were then simply endorsed by a prosecutor from the General Prosecutor's Office, without having made any additional inquiries of his own, as the basis for dismissing the case. This institutional connection between the investigators and those implicated by the applicant in the incident, in the Court's view, raises legitimate doubts as to the independence of the investigation conducted (see Tsintsabadze v. Georgia, no. 35403/06, § 78, 15 February 2011)."
[49] It is, in our view, also important to note the general principles set out by the ECtHR earlier in its judgment in that case, namely at paragraphs 69 - 72:
"69. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). The same principle applies to alleged ill-treatment resulting in injury which takes place in the course of an applicant's arrest (see Klaas v. Germany, 22 September 1993, §§ 23-24, Series A no. 269, and Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII).
70. According to the Court's case-law, Article 3 does not prohibit the use of force for the purposes of effecting an arrest. However, such force may be used only if indispensable and must not be excessive (see, among others, Altay v. Turkey, no. 22279/93, § 54, 22 May 2001; and Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007). In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).
71. Furthermore, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).
72. Lastly, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention', requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII)."
[50] In our view, it is important to note what the ECtHR said respecting the burden of proof moving to the state, where matters lie wholly or largely within the exclusive knowledge of the state. We consider that it is a coherent and logical extension of that approach to the burden of proof that, where an issue arises as to a prima facie want of structural independence in the hierarchical structure under which any investigation bore to be carried out, the state should similarly be required to demonstrate the presence of the requisite structural independence.
[51] In these circumstances we conclude that the sheriff and the sheriff principal were in error in dismissing as irrelevant the pursuer's averments that the investigation by Inspector Darroch lacked the requisite structural independence required by the Convention. It was clearly averred that the inspector was a member of the Strathclyde Police and therefore a member of the same police force, subject to the directions of the first defender, the Chief Constable, as were all officers under his command. Other than there being some acceptance of the designation or assignment in some administrative terms of Inspector Darroch to the "complaints branch", there was no admitted material upon which either the sheriff or the sheriff principal could be satisfied that, as a matter of relevancy, the pursuer required to be taken, despite his primary averments, to have admitted the existence of adequate structural independence such as to render his averments irrelevant. In our view, the designation of the inspector as a member of the "complaints branch" is, in itself, of no materiality without any evidence whether that designation involved adequately developed structural mechanisms and hierarchical separations to ensure that had it had the necessary structural independence.
[52] Any such mechanisms or divisions are matters peculiarly within the knowledge of the defenders. The criticism made of the pursuer's pleadings to the effect that the pursuer had simply advanced a bald assertion of want of structural independence and had not set out a desiderated system of investigation with the consequence that, on that account, the pursuer's pleadings should be treated as irrelevant is in our view misconceived. Similarly misconceived is what we understood to be the contention advanced by the solicitor advocate on behalf of the Chief Constable and, we think, also by counsel for the Lord Advocate, that it was for the pursuer not only to aver and establish the mechanics of another independent system of inquiry but also that such an independent inquiry would produce a result favourable to the pursuer. The obligation on the state, adjectival to the substantive obligation under article 3 ECHR, is to provide the appropriate independent investigation. Where that adjectival obligation is not fulfilled the state is in breach of its obligations under the ECHR, irrespective whether, had a proper investigation been carried out, the complaint of the party making the allegation would have been upheld in substantive terms.
[53] Accordingly, on this branch of the case, it is our opinion that the appeal for the pursuer succeeds. It is then necessary, if that view be accepted, for the court to decide as to future procedure, particularly in light of the minute of amendment tendered by the pursuer ( see paragraph [35] ff supra). But before addressing that procedural issue, we think it is appropriate that we should express our views on the second branch of the case, namely the question of "effective participation".
[54] Counsel for the pursuer made plain that, under this head, he was not seeking direct access to the statements ingathered by Inspector Darroch or others involved in the inquiries. His argument was essentially directed towards what he contended was the inadequacy of the reasons given to the pursuer for the rejection of his complaint and for the absence of any proceedings against the officers involved. The giving of adequate reasons was an important part of the principle of publicity and transparency. He pointed to the endorsement given by Lord Rodger of Earlsferry at paragraph 69 of his opinion in R (Green) v Police Complaints Authority to what had been said, in respect of complaints against the police,by Hale LJ in the Court of Appeal. Although already quoted, it may be convenient to repeat the text:
"the best safeguard for all concerned is a fully reasoned decision, giving an account of the evidence received, any conclusions reached on disputes of fact, applying the appropriate law to the facts found, and explaining the considerations which have affected any discretion exercised. Only rarely should the reasonable recipient of such a decision be so suspicious as to wish to see the underlying evidence on which it is based. I would therefore conclude that a fully reasoned decision is the best way to safeguard the integrity of and promote individual and public confidence in the complaints procedure."
While counsel for the Lord Advocate submitted that in that observation Hale LJ may have been setting a "gold standard", we did not understand him to contend that the adequacy of the reasons for rejection of a complaint of mistreatment by the agents of the state could not constitute an important element in meeting the need for there to be patent means for founding public satisfaction as to the impartiality and adequacy of the investigation.
[55] The reasons given by the area procurator fiscal in her letter of 6 June 2005 are at best, extremely perfunctory. In paragraph [10] of the note annexed to his interlocutor the sheriff principal says:
"It might have been helpful had the letter gone on to explain that before any criminal proceedings could succeed there would require to be corroborated evidence, and that there was insufficient corroborated evidence upon which to base a prosecution. As [counsel for the Lord Advocate] pointed out, any informed reader would understand that it was the lack of corroborated evidence which almost certainly informed the decision made by the procurator fiscal."
But, as counsel for the pursuer in this appeal pointed out, given the medical report reporting the plurality of injuries noted by the author as being present when he examined the pursuer on 10 September 2004 and judged as being consistent with the pursuer's account, it is hard to see that it was self‑evident that the decision of the area procurator fiscal was based upon the absence of corroboration. The letter, which was copied to his solicitors, conspicuously avoids the use of any terms such as sufficiency or lack of corroboration. In our opinion counsel for the pursuer is therefore correct in saying that there is doubt as to the basis for the area procurator fiscal's decision not to proceed; in particular whether it involved an assessment of the relative credibility of the pursuer and the police officers. Moreover, as counsel for the pursuer pointed out, the letter does not begin to detail or summarise the "available evidence" which the area procurator fiscal had considered. In that respect it has of course to be borne in mind that request for sight of the inspector's report had been expressly refused by her office.
[56] While it was contended by counsel for the Lord Advocate that the prima facie deficiencies in the reason (if that be at all a proper description) proffered by the area procurator fiscal in her letter of 6 June 2005 may be made good by reference to the more detailed letter sent on behalf of the Chief Constable on 22 June 2005, it is plain that the latter expressly excludes from its consideration any examination of the allegations of assault upon the pursuer by the police. Particularly if one puts upon the terms of the former (i.e. the letter of 6 June 2005) the benevolent construction that prosecution was rejected on grounds of lack of corroboration to which the sheriff principal was attracted , the question whether disciplinary proceedings, in which corroboration would not be an evidential requirement, respecting the complaints of assault might be justified, is simply elided. That elision is not addressed by the sheriff principal.
[57] In these circumstances we have come to the view that the rejection in the court below of that branch of the pursuer's case concerning a breach of the adjectival, investigatory obligation under article 3 which involved a failure by the state to ensure effective participation and thus accountability as being irrelevant was not well founded.
[58] Given that, in our view, the rejection in the court below of the pursuer's averments of a breach of the adjectival obligation under article 3 ECHR simply by way of preliminary plea to the relevancy was erroneous, the question next arising, to which we have already adverted (cf paragraph [53] supra) is how one proceeds given the tendering by the pursuer, in the course of the argument in this appeal, of the minute of amendment to which reference has already been made in paragraphs [35 and [36].
[59] We appreciate the thinking behind the tendering of the minute of amendment, namely that it would, in effect, "short circuit" matters if the argument for the pursuer were to be preferred, and the only matter which the sheriff would then require to consider was the amount to be awarded by way of just satisfaction. That potential procedural advantage was acknowledged by Mr Macpherson on behalf of the Chief Constable. Counsel for the Lord Advocate was however opposed to that point of view. We are conscious that in the debate before the sheriff and the sheriff principal the focus was only on the attack on the relevancy of the pursuer's pleadings. There was no argument addressed to the relevancy of the defences. The view which we have formed as to the more substantive arguments may be summarised very shortly as being that on both branches the pursuer has put forward on averment a case which has, at the very least, the necessary fumus boni juris not to have been rejected as irrelevant without inquiry; and that the onus is upon the defenders to establish, if they can, that the investigation was one meeting the requisite standards. It is no doubt regrettable that this conclusion is reached only after the protracted procedure already mentioned. We fully appreciate the desire to minimise further delay and expense which underlies the proposed minute of amendment. But we have come to the view that the suggested "short-cut" procedure is not an option which we would endorse.
[60] The minute of amendment was tendered in the course of the debate before us and no opportunity was available to the defenders to consider whether, given the attack on the relevancy of the defences which it sought to focus, there were any material facts upon which they would wish to respond by way of averment. A further consideration is that on any view this case must return to the sheriff for proof before answer on the substantive issues of assault and degrading treatment and even if the minute of amendment were allowed and given effect, for assessment by the sheriff of the appropriate sum by way of just satisfaction. Having regard to these considerations we consider that the appropriate procedural course for this court to adopt is to refuse in hoc statu the receipt of the minute of amendment. By refusing in hoc statu it would be open to the pursuer, when the case is again before the sheriff court, to present again the minute of amendment with the usual application for the allowance of answers - should the defenders be so advised.
[60] We shall therefore refuse in hoc statu receipt of the minute of amendment number 40 of process tendered in the course of the appeal hearing; allow the appeal; recall the interlocutors of the sheriff principal of 25 April 2008 and the interlocutor of the sheriff of 5 June 2007; allow to parties a proof before answer of the whole averments with all pleas standing; and to remit to the sheriff to proceed as accords.