Kevin Ruddy V. William Rae, Chief Constable Strathclyde Police+eilish Angiolini, The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Clarke,Lady Paton |
| Judgment Date | 02 March 2011 |
| Neutral Citation | [2011] CSIH 16 |
| Docket Number | No 38 |
| Date | 02 March 2011 |
| Court | Court of Session |
| Published date | 08 March 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Clarke Lord Abernethy | [2011] CSIH 16 OPINION OF THE COURT delivered by LORD CLARKE in the appeal by KEVIN RUDDY Pursuer and Appellant; against WILLIAM RAE, CHIEF CONSTABLE STRATHCLYDE POLICE First Defender and Respondent; and ELISH ANGIOLINI Q.C., THE LORD ADVOCATE Second Defender and Respondent; _______ |
Alt (First): Shand Q.C.; Simpson & Marwick;
Alt (Second): Anderson Q.C, Ross.; Scottish Government Legal Directorate
2 March 2011
[1] This appeal is taken against an interlocutor of the Sheriff Principal at Glasgow, whereby he excluded from probation the appellant's averments in Article 12 of Condescendence and otherwise adhered to an interlocutor of the Sheriff whereby he refused Crave 2 "insofar as it relates to the first named defender" and dismissed the action insofar as directed against the second defender.
[2] The foundation of these proceedings are allegations by the appellant that officers of Strathclyde Police, on 6 September 2004, assaulted him in various ways which are set out in Article 3 of Condescendence in the initial writ. The first defender is said to be vicariously liable for these assaults. In Article 5 of Condescendence it is averred as follows.
"The actings of the Strathclyde Constables on or about 6 September 2004 were not justified by the behaviour of the pursuer. They were concerted, deliberate and malicious. They amounted to an assault on the pursuer".
In Article 7 of Condescendence, it is averred:
"As a result of the Strathclyde Constables' actings, the pursuer suffered loss, injury and damage. He suffered the affront and insult of being assaulted. He suffered tenderness and scratching to the head. He suffered bruising, scratching and abrasion to the body. The sum sued for in Crave 1 is a reasonable estimate of the pursuer's loss, injury and damage."
The sum sued for in Crave 1 is £10,000. The appellant's first plea in law is in the following terms:
"The pursuer having suffered loss, injury and damage through being assaulted by officers for whose conduct the first defender is responsible, he is entitled to reparation from him therefor".
The truth, or otherwise, of the allegations of assault has not yet been established. Allegations of this kind, made by persons being taken into custody by police officers, may be investigated in a proof in a common law action for damages for assault. In the event that liability is established, damages may be awarded
[3] The appellant has, however, gone further in his writ than seeking such a determination. In Article Six of Condescendence he avers:
"The actings of the Strathclyde Constables on or around 6 September 2004 were not made strictly necessary by the conduct of the pursuer. They diminished his human dignity and amounted to degrading treatment incompatible with the (sic) his rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention')."
It should be noted that in Article Seven of Condescendence, as well as having averred that the sum sued for in Crave 1 is a reasonable estimate of the pursuer's loss, injury and damage arising from the alleged assaults, the averments continue:
"The award of damages sued for in Crave 1 is necessary to afford just satisfaction to the pursuer in terms of Section 8(3) of the Human Rights Act 1998 in respect of the loss, injury and damage that he suffered as a result of actings of the Strathclyde Constables incompatible with his rights under Article 3 of the Convention".
The pursuer's third plea in law is in the following terms:
"The treatment of the pursuer on or about 6 September 2004 being degrading treatment contrary to Article 3 of the Convention by a public authority and the award of damages sued for in Crave 1 being necessary to afford just satisfaction to the pursuer in terms of Section 8 of the Human Rights Act 1998 for that treatment, decree for damages should be pronounced against the first defender as craved."
Thus far, then, it would appear that the appellant is seeking against the first respondent a total sum of £10,000, cumulatively, in respect of two separate legal wrongs for which the first respondent is said to be responsible. Matters do not rest there, however, for in Article 8 of Condescendence the appellant sets out the following averments:
"At around November 2004 the pursuer made a complaint to the first defender about his treatment by the Strathclyde Constables. He complained that they had treated him in the manner hereinbefore condescended upon. On or about 23 December 2004 the Complaints and Discipline Branch of Strathclyde Police, Police Headquarters, 173 Pitt Street, Glasgow ("the Complaints Branch") sent a report about the pursuer's complaint to the Procurator Fiscal, Procurator Fiscal's Office, 10 Ballater Street, Glasgow ("the Procurator Fiscal"). On or about 10 January 2005 the Procurator Fiscal instructed the Complaints Branch to carry out an enquiry into the pursuer's complaint. On or around 13 January 2005 the Complaints Branch appointed Inspector Darroch of Strathclyde Police to carry out that enquiry..."
The appellant then goes on to criticise, in some detail, both in Article 8 and Article 9 of Condescendence, the nature of that investigation and the enquiry, and the outcome of it which was that the Procurator Fiscal decided that the available evidence would not justify criminal proceedings being brought against any of the police officers. The Complaints Board of Strathclyde Police, furthermore, decided that no disciplinary action be taken against any of the police officers involved in the matter.
[4] In Article 10 of Condescendence the appellant avers:
"The Complaint Branch's and Procurator Fiscal's acts and omissions as hereinbefore condescended upon were incompatible with the petitioner's (sic) right under Article 3 of the Convention to a thorough and effective investigation of his complaint by the state"
There then follow averments purportedly supporting that contention. Articles 11 and 12 of Condescendence set out averments to the effect that Strathclyde Police were in breach of the Article 3 investigatory obligation and the Lord Advocate was also in breach of that Article 3 obligation in respect of the acts and omissions of the Procurator Fiscal in considering the matter and deciding that no criminal proceedings should be brought against the police officers. This chapter of the case appears to be supported by a general plea, plea in law 4, directed against both respondents in respect of alleged breaches of Article 3 of the Convention and a crave (Crave 2) for payment by them of £10,000 in damages sought from them "severally" as "just satisfaction" in terms of Section 8 of the Human Rights Act 1998.
[5] Any...
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