Mr Easdale Campbell (ap) Against (first) Scottish Ministers; (second) Sedexo Limited; (third) Tasco Services Ltd; And (fourth) G4s Care And Justice Services Uk Ltd
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2017] CSOH 35 |
| Published date | 03 March 2017 |
| Docket Number | A486/15 |
| Year | 2017 |
| Court | Court of Session |
| Date | 03 March 2017 |
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[2] On 12 June 2015 the court ordered that the case be withdrawn from petition procedure and appointed it to proceed as an ordinary action.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,...
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