Appeal From Glasgow Sheriff Court Stuart Docherty+paul Logan+james Philbin V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord President,Lord Wheatley |
| Judgment Date | 02 September 2011 |
| Neutral Citation | [2011] CSIH 58 |
| Docket Number | XA48/10, |
| Date | 02 September 2011 |
| Court | Court of Session |
| Published date | 02 September 2011 |
| FIRT DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lady Smith Lord Wheatley | [2011] CSIH 58 XA48/10, XA49/10 and XA50/10 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Appeals by (1) STUART DOCHERTY Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: and (2) JAMES PHILBIN Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: and (3) PAUL LOGAN Pursuer and Appellant; against THE SCOTTISH MINISTERS Defenders and Respondents: _______ |
Alt: Drummond; Scottish Government Legal Directorate
2 September 2011
Introduction
[1] The appellants are all former prisoners who, for part at least of their sentences, were held at HMP Barlinnie, Glasgow. They have each raised an action under ordinary cause procedure in Glasgow Sheriff Court, claiming that the conditions in which they were held within that prison during their detention were incompatible with their rights under Articles 3 and 8 of the European Convention on Human Rights, and that the circumstances of their detention were accordingly ultra vires of the respondents under section 57(2) of the Scotland Act 1998.
[2] The last date on which the appellants were detained in the conditions complained of was 17 July 2000 in respect of Stuart Docherty, 3 February 2002 in respect of James Philbin, and 15 December 1999 in respect of Paul Logan. Their actions were raised respectively in July 2006, August 2007 and August 2006. The remedy sought in respect of each appellant was initially limited to an award of damages as just satisfaction for the infringement. It was accepted by all parties that the statutory basis of that claim was section 100(1) and (3) of the Scotland Act 1998. In February 2009 minutes of amendment in respect of each of the appellants were allowed by the sheriff, which sought to add a new crave in each action for a declarator that the respective appellant's Convention rights had been breached. Amendment to that effect was allowed in April 2009. On 17 February 2010, following a diet of debate, the sheriff dismissed each of the appellants' crave for damages as having prescribed in terms of section 6 of, and Schedule 1 paragraph 1(d) to, the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"), but allowed parties a proof as regards the declarators sought.
[3] Against that decision the appellants now appeal. The respondents have lodged a cross appeal, claiming that the sheriff ought to have refused each crave for declarator as unnecessary and inappropriate and granted decrees of absolvitor, standing their acknowledgement, as set out further below, that the appellants' rights under Article 3 of the Convention had been breached.
The respondents' acknowledgement of breaches of Article 3 of the Convention
[4] On 15 September 2006 the Scottish Prison Service issued a general public statement which acknowledged that, where two prisoners had been detained in a relatively small cell for a significant part of the day, and had to use a chamber pot or similar arrangement to perform bodily functions in one another's presence in that shared cell ("doubled up slopping out conditions"), their Article 3 Convention rights had been breached and they would, in general, be entitled to payment in satisfaction of that breach. The appellants' pleadings relied on, but were not restricted to, the fact that they had been detained in such conditions. Nevertheless, before the sheriff the respondents' pleadings denied that the appellants' conditions of detention were, at any time, such as to violate their Article 3 or Article 8 Convention rights. On 24 May 2010, following the debate before the sheriff, the respondents wrote to each of the appellants acknowledging that their Article 3 Convention rights had been violated when they were detained in doubled up slopping out conditions. However, they maintained that their right to damages had prescribed in terms of the 1973 Act. Prior to the hearing in the present appeals, the respondents' pleadings in each case were amended to reflect this position.
The legislation
The Scotland Act 1998 and Human Rights Act 1998
[5] At the time at which the present actions were raised, section 100 of the Scotland Act 1998 was in the following terms:
"(1) This Act does not enable a person-
(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
(b) to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.
(2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland.
(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.
(4) In this section "act" means-
(a) making any legislation,
(b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive"
The section has since been amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which, read shortly, inserted a new time limit of one year in which to bring proceedings, subject to exceptions based on consideration of equity. That time limit only applies to actions raised after 2 November 2009. Section 57(2) of the Act, in so far as material, provides:
"A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights ...".
[6] Section 8(3) and (4) of the Human Rights Act provides:
"(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
The Presciption and Limitation (Scotland) Act 1973
[7] Section 6(1) and (2) of the 1973 Act provides:
"(1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years-
(a) without any relevant claim having been made in relation to the obligation, and
(b) without the subsistence of the obligation having been relevantly acknowledged,
then as from the expiration of that period the obligation shall be extinguished:
...
(2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies."
Schedule 1, paragraph 1 of the 1973 Act provides, inter alia:
"Subject to paragraph 2 below, section 6 of this Act applies-
...
(d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation;
...".
Section 11(1) and (2) of the 1973 Act provides:
"(1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.
(2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased"
Competency of the actions
Submissions on behalf of the respondents
[8] As a preliminary point, Ms Drummond invited us to dismiss the present actions as incompetent. Relying on Ruddy v Chief Constable of Strathclyde 2011 SLT 387, she submitted that any proceedings in respect of alleged breaches of Convention rights ought to be brought by a petition for judicial review and not by ordinary action (per Lord Clarke at para [14]). The true nature and substance of the present actions was an attempt to show that the respondents had acted ultra vires under section 57(2) of the Scotland Act. That was a matter for the supervisory jurisdiction, exclusive to the Court of Session (West v Secretary of State for Scotland 1992 SC 385, per Lord President Hope at pages 412-413; Brown v Hamilton District Council 1983 SC (HL) 1, per Lord Fraser of Tullybelton at pages 41-45). While, prima facie, the appellants sought to challenge the acts and omissions, as opposed to decisions, of the Scottish Ministers, nothing turned on that distinction: the continued detention of the pursuers in the conditions complained of had involved implicit decisions. Nor was there authority that the supervisory jurisdiction was inappropriate where, as here, the alleged ultra vires act had since ceased.
[9] Ms Drummond referred to other cases in which it had been held incompetent to proceed other than by a petition for judicial review (McDonald v Secretary of State for Scotland (No.2) 1996 SC 113; Sidey Ltd v Clackmannanshire Council 2010 SLT 607). She submitted that where the substance of the complaint fell within the supervisory jurisdiction, it could not be brought in the sheriff court even if the appropriate remedy would otherwise be available (Clyde &...
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