Appeal By Kevin Ruddy V. The Chief Constable Strathclyde Police+the Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Eassie,Lord Brodie |
| Judgment Date | 03 September 2013 |
| Neutral Citation | [2013] CSIH 73 |
| Court | Court of Session |
| Published date | 03 September 2013 |
| Docket Number | XA114/08 |
| Date | 03 September 2013 |
| 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: _______________ |
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...
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James Mcdowall Against G4s Care And Justice Services (uk) Limited
...but to have regard to the prevailing general run of decisions and their underlying reasoning: Ruddy v Chief Constable, Strathclyde Police 2014 SC 58 at para [45]. Article 3 ECHR [9] In regard to article 3 of ECHR I was directed to the Grand Chamber decision in Kudla v Poland (2000) 35 EHRR ......
- James McDowall Pursuer against G4S care and Justice Services (UK) Ltd Defender