Scottish Sheriff Court Decisions

                                                                        Case Number: A116/14

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH 2015SCEDIN37

Decision by   Sheriff Frank Richard Crowe   In the cause   James McDowall prisoner in HM Prison Addiewell, West Lothian Pursuer; against   G4S care and Justice Services (UK) Limited, Southside, 105 Victoria Street, London, SE1E 6QT Defender:     ________________

EDINBURGH 5May 2015

Act: Kelly, Messrs Taylor & Kelly, Coatbridge

Alt: Batchelor, Simpson & Marwick, Edinburgh

Introduction

[1] This is an action for damages under section 7 of the Human Rights Act 1998 in relation to the use of restraint by the defenders while the pursuer was taken from prison to attend three hospital appointments. The pursuer seeks a declaration that these actions were incompatible with his rights under articles 3 and 8 of the European Convention on Human Rights and damages of £10,000.

[2] The initial writ was lodged at Edinburgh Sheriff Court on 10 March 2014 and after being sisted to determine the pursuer’s legal aid application was re-enrolled on 28 October 2014.  An options hearing was fixed for 20 January 2015 and continued for further adjustment when a debate was fixed. The case called before me for debate on the pursuer’s preliminary plea on 7 April 2015. As directed by Sheriff Corke on 17 February both parties lodged notes of argument and co-operated in the preparation of a volume of authorities. These proved of great assistance in focussing the matter and minimising court time.

Submissions on behalf of the pursuer

[3] Mr Kelly submitted that the absence of an individualised risk assessment meant the application of double handcuffs to the pursuer on each occasion he attended for a hospital appointment, without reference to any supposed risk that he was said to present, was disproportionate and in breach of articles 3 and 8 of ECHR. Averments about what may have happened had such an individualised risk assessment taken place were irrelevant.

[4] Mr Kelly contended that on each occasion the pursuer was taken to hospital and escorted in public areas and to examinations in double handcuffs. This behaviour was inhuman and degrading. Mr Kelly sought declarator that the pursuer’s statutorily protected right had been breached and just satisfaction damages.

[5] Since no risk assessments had been carried out prior to these hospital visits the defender’s averments in this context were irrelevant and the matter should proceed to a consideration of quantum only. Any damages awarded in this context are however discretionary and the court would be guided by awards made in the reported cases.

[6] The measures taken against the pursuer by the defender were the result of a blanket policy whereby all prisoners taken by the defenders for such visits were double handcuffed as a matter of routine.

[7] Mr Kelly pointed to what he submitted was an established line of authority which showed that the routine handcuffing of prisoners was incompatible with Convention rights. In interpreting these rights as they have developed the court should follow a clear and constant line of decisions: Manchester City Council v Pinnock (Nos 1 and 2) [2011] 2 AC 104 at para 48 following R (Ullah) v Special Adjudicator [2004] 2 AC 323.

[8] The court should not treat a decision of the European Court of Human Rights as setting a binding precedent 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 11 and the principles enunciated therein at paras 90-92 and Ramirez Sanchez (2007) 45 EHRR 49 at paras 116-119. Of particular importance in the present case was that the inhuman or degrading treatment had to attain a minimum level of severity for a breach of article 3 to be established: Kudla para 91:-

“The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim.”

[10] This point was reiterated in Greens, Petitioner 2011 SLT 579 at para [257]:-

“Treatment has been held to be degrading where it aroused in the victim feelings of fear, anguish and inferiority beyond which might be expected to follow imprisonment.”

[11] I was referred to a number of ECtHR authorities concerning the use of handcuffs and how they might impact on articles 3 and 8 ECHR. In Mouisel v France (2004) 38 EHRR 34 the applicant had been sentenced to 15 years’ imprisonment for armed robbery, kidnapping and fraud in 1996. By 1999, when aged 61, he was suffering from leukaemia and when his condition worsened with a tumour, he required chemotherapy sessions in hospital.  He was chained up during his journeys to and from hospital and claimed that during chemotherapy sessions his feet were chained together and a wrist was chained to a bed. The applicant complained about his treatment and stopped having it for a period prior to his release on licence in 2001. He complained that his continued detention and the conditions in which he had been detained when seriously ill had violated article 3. At para 44 of the report the Court noted the reply from the Regional Director of the Prison Service about the use of handcuffs suggesting:-

“that the applicant’s illness did not exempt him from being handcuffed and that the manner in which the handcuffs were used is standard practice in the context of detention.”

[12] At para 47 while the Court reiterated that handcuffing with a lawful detention does not normally give rise to an issue under article 3, in the present case the Court considered the use of handcuffs was disproportionate to the needs of security:-

“having regard to the applicant’s health, to the fact that he was being taken to hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness,”

The court listed as one of the possible challenges to the use of handcuffs might be public exposure. The Court considered that the applicant may have experienced considerable anxiety as a result of his detention and made an award of €15,000.

[13] In Henaf v France (2005) 40 EHRR 44 the applicant had various criminal convictions including one for armed robbery. He was transferred from prison in Nantes to Bordeaux for an operation in the hospital there the following day. He was handcuffed throughout the journey and the rest of the day. He was shackled to his bed at night with two police officers outside his room. In view of these conditions he decided not to have the operation and lodged a complaint.

[14] At para 55 of the report the Court reiterated that the Convention was a living instrument:-

“which must be interpreted in light of present day conditions.”

[15] At para 56 the Court said:-

“having regard to the applicant’s age, [75 at the material time] to his state of health, to the absence of any previous conduct giving serious cause to fear that he represented a security risk, to the prison governor’s written instructions recommending normal and not heightened supervision and to the fact that he was being admitted to the hospital the day before an operation, the Court considers that the use of restraints was disproportionate to the needs of security particularly as two police officers had been specially placed outside the applicant’s room.”

[16] At para 57 the Court noted a general circular which had been in force in France since 1993 prohibiting the practice of attaching prisoners to their hospital beds for security reasons – except in exceptional circumstances. The Court concluded the treatment of the applicant was not compatible with article 3. No damages were sought but it is not clear from the report whether in light of the Court’s finding that question was to be dealt with under national law.

[17] I was next referred to Tarariyeva v Russia (2009) 48 EHRR 26. In this case the applicant was sentenced to six years’ imprisonment in 2000 for grievous bodily harm resulting in death. This conviction was subsequently quashed but in April 2002 he was convicted and again sentenced to six years’ sentence having been remanded in custody throughout. He was by 2001 suffering from an acute ulcer condition and was escorted to and from prison hospital. He was diagnosed with chronic gastroduodenitis and fainted in court in February 2002. After reconviction in July 2002 he was transferred to a penal colony, his medicines taken away and he received no further treatment.

[18] By 20 August 2002 the applicant was in severe pain and transferred to a civilian hospital for an emergency operation following a diagnosis of a perforated ulcer and peritonitis. His mother visited him and saw that he was handcuffed to his bed through the night. Despite protests and post-operative complications the applicant was returned to prison hospital where a further operation was performed before he died on 4 September 2002 aged 26.

[19] The case raised various issues including alleged violations of articles 2 and 13 of ECHR but in regard to article 3 arguments the Court said at para 110:-

“In the instant case it was not in dispute between the parties that Mr Tarariyev had not presented any danger of absconding or causing self-harm or injury to others. He was attached to the bed on the day after complex internal surgery. He was on a drip and could not stand up unaided. It also appears from Ms T’s detailed disposition that a police officer armed with a submachine gun was present in Mr Tarariyev’s room and two other officers remained on guard outside the room. In these circumstances the Court considers that the use of handcuffs was a disproportionate to the needs of security.”

[20] The applicant’s mother who continued the case after her son’s death was awarded €25,000 in respect of two violations of article 2 and two violations of article 3, one in respect of handcuffing and the other on account of conditions of transport from the civilian to the prison hospital. By that time the applicant’s condition was so poor handcuffs do not seem to have featured.

[21] In Istrath v Moldova App 8721/05) (27 March 2007) when the applicant, who had no previous convictions, was aged 33, he was held on remand on a charge of fraud in respect of land worth about €15,000 for which the maximum sentence was two years’ imprisonment. He was diagnosed with an acute crisis of paraprocitis with rectal haemorrhage and transported to hospital. He was handcuffed to a wall heater until his surgery the following day and guarded at all times by two prison officers.

[22] At para 57 of the report the Court noted:-

“that the Government gave no explanation for the need to handcuff the applicant, except to emphasise that he had not been handcuffed during surgery. Indeed, the applicant’s medical condition (both before and after surgery) effectively excluded any risk of fleeing or of causing violence…. And there was no claim that he had any record of violence. In such circumstances, and in light of the further fact that two[Centre for Fighting Economic Crime and Corruption]officers guarded the applicant in his hospital room, his handcuffing to a wall heater was disproportionate to the needs of security and unjustifiably humiliated him, whether or not that had been the intention”.

[23] The Court held in Mr Istrath’s case that there had been violations of article 3 in respect of insufficient medical treatment and humiliation as well as in relation to his conditions of detention and awarded €6,000.

[24] In Uyan v Turkey (App 7496/03) (8 January 2009) the applicant was at the material time a 35 year old female who was serving 22 years s’ imprisonment for being a member of a terrorist group. She required to be taken to hospital from prison to undergo an ultrasound scan by a gynaecologist and was accompanied by two policemen, a male and female prison officers.

[25] The consultation room was on the ground floor of the hospital and the windows were unprotected. The applicant’s handcuffs were not removed and the officers refused to leave the room for security reasons though they said they would wait behind a folding screen. The applicant refused to be examined in such circumstances and the gynaecologist was unwilling to examine the applicant without her consent.

[26] The Court dealt with the alleged violation of article 3 at paras 30-35 and while recognising that the security risk presented by the applicant in light of her heavy sentence, considered at para 32:-

“that the insistence on the use of handcuffs during an examination by a gynaecologist, and the presence of three male security officers in the examination room during the consultation, even behind a folding screen, were disproportionate security measures, when there were other practical alternatives. For example, the officers could have secured the room by leaving the female prison guard there and placing one of the gendarmes outside the window of the consultation room.

[27] At para 27 the Court noted that the doctor and police officers had acted in compliance with domestic legislation and relevant protocols.

“In the Court’s view, these strict measures failed to allow a flexible and more practical approach to be taken, depending upon the particular risk presented by such a prisoner and the type of medical examination to be performed. In particular, the Court finds that the Government have not demonstrated that the applicant presented such an acute security risk that measures of this nature were required for a gynaecological procedure.”

While the Court held there had been a violation of article 3 as the applicant had submitted no claim for just satisfaction no damages were awarded.

[28] In Sizarev v Ukraine (App 17116/04) (17 January 2013) the applicant complained of being handcuffed while in hospital during a period on remand on a charge of assault to severe injury. He had been put in a cell which held 10 detainees and was discovered an hour later having sustained multiple injuries. He was aged 46 at the time and had no previous convictions.

[29] When in hospital the applicant was found to have concussion and numerous bruises as well as several underlying health conditions including chronic hepatitis. During a 16 day stay in hospital the applicant was handcuffed to his bed although the ward in which he was held had bars on its windows, a lock on its door and the applicant was guarded by three police officers at all times.

[30] The applicant’s lawyer complained about these conditions but after investigation the local police concluded the applicant’s handcuffing was not contrary to their Pre-Trial Detention Act which only provided exceptions for the elderly, disabled and minors. The applicant had been under constant medical supervision and had handcuffs removed during meals, when taking medication, toilet breaks and additionally for about 30-40 minutes per day.

[31] At paras 135-141 of the report the Court dealt with the applicant’s submissions that the handcuffing he had undergone in hospital had been unlawful, unjustified and humiliating. The Court rejected the Government’s submissions that the applicant had made numerous attempts to leave the ward and that there were attempts by his supporters to enter the ward.

[32] The Court noted at para 138 the applicant had been admitted to hospital:-

“(...late in the evening of 27 April 2004 and the fact that he was handcuffed on that very date,) the applicant was restrained from the very outset of his stay there and not following any attempt to escape. Having regard to these circumstances, the Court finds it difficult to imagine how the applicant could have undertaken “numerous attempts” to escape while shackled to his bed.”

[33] At para 139:-

“The Court further notes that the applicant was guarded by three police officers at all times, the windows of his ward were barred and the door equipped with a lock. These measures appear largely sufficient to prevent the applicant’s escape, as well as any unauthorised visits to him. The Court also notes that at no point was it asserted that the applicant had behaved aggressively towards the hospital personnel or the police, posed a threat to his own safety or been likely to commit suicide.”

[34] The handcuffing of the applicant in hospital was considered disproportionate to the requirements of security and an unjustifiable humiliation, whether or not intentional.  The Court held that the applicant’s Convention rights had been violated in four instances pertaining to article 3 and three in relation to article 5. The main complaints were in relation to the detention of the applicant in a cell with other prisoners and failing to ensure his safety. The Court made a global award of €9,000 in respect of all seven violations.

[35] In Salakhov and another v Ukraine (App 28005/08) (14 March 2013) the claimant died aged 27; 3 years before his death he had tested HIV positive. 9 months before his death the applicant was remanded on a charge of robbing an acquaintance of a mobile phone. He did not disclose his underlying condition at this time but his health began to deteriorate about 5 months prior to death when he began to suffer from fevers and a constant digestive disorder.

[36] Eventually 2 months prior to his death the applicant was diagnosed with an HIV infection at the fourth clinical stage and compassionate release was sought. He was transferred to hospital and handcuffed during treatment from 20 June to 18 July 2008. Meantime the applicant had been convicted of fraud instead of the robbery charge and was fined but kept in detention pending the decision becoming final.

[37] By this time the applicant’s condition was terminal and his mother was able to take him home for two brief periods but he had to return to hospital where he died on 2 August 2008. At para 153 of the report the Court considered it sufficiently established that the applicant had been subjected to continuous handcuffing throughout the period referred to in para [36] above.

[38] At para 155 the Court concluded there was:-

“no indication that the…applicant ever behaved violently or attempted to escape. Furthermore, it is not disputed by the parties that he was constantly guarded by police officers while in hospital. Moreover he suffered from severe immunosuppression caused by his HIV status, as well as a number of concurrent illnesses (see paragraph 43 above). No special medical qualifications were required in order to understand how weak and ill he was. Thus, the prosecutor pursuing criminal charges against the …applicant acknowledged on 24 June 2008 that he was in a “critical health condition” (see paragraph 39 above). Nonetheless, the police still considered it necessary to keep him handcuffed in hospital. The handcuffing continued even after the Chief Doctor …indicated to the…Police Department on 2 July 2008 that the …applicant was seriously ill and that he needed to be unrestricted in his movements. In total, the …applicant remained handcuffed in hospital for twenty-eight days.”

[39] The Court considered the applicant’s treatment inhuman and degrading and could not be justified for security reasons given his poor state of health. The Court held that the applicant’s Convention rights had been violated on two areas in relation to article 2 of ECHR and three areas in regard to Article 3 including handcuffing in hospital. The Court made a posthumous cumulo award of €50,000 to the applicant’s mother.

[40] Mr Kelly then took me to a series of English decisions which he submitted accepted the line of authorities he had demonstrated above and took issue with blanket policies about handcuffing prisoners.

[41] In Spinks v Secretary of State for the Home Department [2005] EWCA Civ 275, the appellant then aged 62, had been convicted of murder in 1996 and was not eligible for consideration of parole until 2008. In late 2003 the appellant was diagnosed with terminal cancer of the colon. He had received palliative chemotherapy but at the time of the hearing his life expectancy was described as very short. Among the complaints made was that when the appellant attended his hospital appointments he had been handcuffed or otherwise restrained and had been attended by prison officers. He was also restrained when he was recovering from emergency surgery.

[42] The Court of Appeal agreed with the judge at first instance and dismissed the appeal as they concluded the over cautious use of handcuffs had not reached the required level for article 3. At para 47 Lord Justice Buxton in delivering the leading opinion agreed with the observations of Mr Justice Elias in the court below where he wondered whether such rigorous security was necessary when the appellant was in hospital and suggested the authorities might wish to reflect on the implications of the Mouisel (supra) decision.

[43] It was noted however that the prison authorities had carried out a risk assessment on the appellant at least in relation to whether he should be released early on compassionate grounds. The probation officer in prison who had compiled the report considered the appellant posed a low risk of offending and suggested he might be a suitable person for hospice care. Ultimately she believed the appellant would best be managed within the prison estate.

[44] In Graham and Allen v Secretary of State for Justice [2007] EWHC 2940 (Admin) the first claimant was a 28 year old man suffering from Hodgkin’s lymphoma. He was serving a 3 year sentence for possession of cannabis, heroin and cocaine with intent to supply. He had a previous conviction for violent disorder in 1997 when he was 18. He was described at para 5 of the report as a:-

“fairly low level criminal.”   

At the time of receiving treatment he was described as a category C prison – assessed as posing some risk of escape and some risk to the public should he escape.

[45] Evidence was produced of periodic assessments carried out by the prison authorities. These highlighted the nature of the offence for which he was serving a sentence, that at the start of the sentence the claimant had been found with a SIM card and mobile phone in his trainers, a suggestion that he was linked to smuggling cannabis into the prison, his 11 previous convictions including a firearms offence in 2003, warnings on his PNC record that he had used a handgun in a kidnap in 2001 and had concealed a knife in his underpants in 2003. The risk of escape was assessed as real and the claimant was to be accompanied by two prison officers and that handcuffs were to remain in place.

[46] At para 16 of the report the Court concluded that in the period before and during his admission to hospital as an in-patient there was some ground for believing that the claimant would pose a serious risk to members of the public if he were to escape.

[47] However by the time the claimant returned to hospital at the end of February 2007 there was little or no basis for concluding that he was anything other than a fairly minor drug dealer. The decision to restrain him during chemotherapy treatment and medical consultation sessions appeared to have no justification. The treatment was intended to afford the claimant some chance of remission from his very serious life-threatening disease. It seemed unlikely he would deliberately forego the opportunity of receiving that treatment by escaping and even if he did he was unlikely to pose a serious risk to members of the public.

[48] By contrast Mr Allen was a 73 year old man who was convicted in 2002 for the murder of his wife and two children. He was a Category B prisoner. He had suffered from heart disease since 1998. He was admitted to hospital in January 2007 having suffered a further myocardial infarction and had an angina attack when there. He was hospitalised in April 2007 after a further chest pain episode.

[49] On the first visit to hospital he was escorted by prison officers on a single handcuff and an escort chain. The prison officers sought the advice of medical staff whether the prisoner could be double handcuffed. The medical staff indicated that there was no medical contraindication to that procedure. Mr Allen complained of wearing double handcuffs while in a hospital bed and that it caused difficulty to his breathing and was uncomfortable and indeed caused difficulty when a cannula was inserted into his arm. He was double handcuffed when he visited hospital on the second occasion also.

[50] A risk assessment on Mr Allen highlighted that he was a triple murderer with a tariff of 18 years of which 5 had been served, the risk he posed to children, his status as a Category B prisoner. He was described as “a highly manipulative person who will try to condition staff wherever possible”.

[51] The Court considered Mr Allen’s case totally different from Mr Graham’s. At para 22 Mr Justice Mitting said Mr Graham:-

“was a long-term prisoner convicted of three very grave offences. As a Category B prisoner, his assessment was that he posed a significant risk of escape and if he escaped, by members of the public, despite his age, and despite the medical condition that caused his admission to hospital. In his case there was no indication from the medical staff that double cuffing was medically inappropriate.”

[52] At paragraph 28 the judge sets out some of the criteria which might be deployed by prison officials in assessing risk. At paragraph 28 Mr Justice Mitting states:-

“Nevertheless there will come some point in relation to any individual prisoner when the judgment that he poses a risk of escape or danger to the public if he were to escape must be made in light of his medical condition. When, as in the case of Tarariyeva [supra] it is known to be impossible for an individual prisoner to pose any such risk, there can be no question of it being lawful to handcuff him and handcuffing him will almost certainly involve a breach of Article 3. It will be inhumane and it will be degrading. The routine handcuffing of a prisoner receiving treatment at a hospital, without there being an assessment of the risk in his individual case, is likewise likely to be unlawful and involve a breach of Article 3: see Mouisel [supra] and Gorodnichev.” v Russia (App 52058/99) ( 24 May 2007).

[53] In the case of Graham the court concluded his article 3 rights were violated from 28 February to 3 March when he was an in-patient and also on the five occasions on which he was handcuffed when receiving chemotherapy and medical consultation as an out-patient. The Court in compensating for these article 3 infringements took into account “really very short periods” of 3 days and 20-25 minutes on five occasions. Appropriate damages were assessed at £500. In Allen’s case because of the risks he posed the court concluded his claim did not cross the threshold of inhuman or degrading treatment prohibited by article 3 and dismissed his claim.

[54] In JB v GSL UK Limited [2007] EWHC 2227 (Admin) the claimant challenged the decision relating to security measures put in place while he received treatment for testicular cancer. During the course of August 2006 he was double handcuffed to and from prison and hospital and allegedly during treatment at the hospital including when he was recovering from an anaesthetic. The claimant said he had to participate in consultations and treatment in the presence of prison officers despite his sensitive condition. It was also alleged that he was required to produce semen samples in the presence of prison officers although this was denied by the defendant.

[55] At the material time the claimant was serving a 20 year sentence for conspiracy to cause an explosion at the Israeli Embassy. He became eligible for early release in April 2005 and had been a Category C prisoner for 4 years however he was due for deportation on completion of his sentence. Risk assessments had been carried out by the defendant. The claimant had been convicted of conspiracy meaning others had been involved in the crime and would be sympathetic to his cause. No issues had been raised by the medical staff and no concerns raised by them as to the security arrangements which were made.

[56] At para 26 Mrs Justice Dobbs DBE said:-

“Those in charge of prisons have an enormous responsibility to shoulder when prisoners are conveyed from prison to other premises. They have a duty to protect the public, their staff, the hospital staff, as well as a responsibility to prevent the commission of criminal offences by one of their inmates, namely escape, and any other offence they may commit. It is well-known that hospital visits are when security is at its most vulnerable. On the other side of the coin, it is not disputed that those handcuffed will experience some distress, (especially if they have to spend some time walking in public) inconvenience and, although the defendant does not accept in this case, possibly discomfort.”

[57] Although the claimant had testicular cancer he was on his own admission a fit person. There were no contra-indications to the wearing of handcuffs and there was no medical condition showing him to be in need of confinement in hospital, even after the operation. He had a good behaviour record while in prison but still protested his innocence of the crime for which he had been sentenced. He remained sympathetic to Palestinians involved in the use of explosives. His Category C status related to his security risk in prison, not outside it. Each time a visit to hospital was necessary a risk assessment was carried out. While there were some defects in the defendant’s records they were not such as to render the decision making process flawed. Unlike the case of Mouisel (supra) there had not been a “blanket policy” approach to the claimant.

[58] The judge concluded that the claimant had failed to show decisions taken in relation to his security were wrong, perverse or irrational; or that there had been a breach of his article 3 rights.

[59] Lord Justice Dyson heard the case of Faizovas v Secretary of State for Justice [2008] EWHC 1197 (Admin) while sitting alone prior to his elevation to the Supreme Court. The claimant was a 49 year old Lithuanian who was a serving prisoner suffering from cancer. He challenged decisions to handcuff him whilst out of prison attending hospital appointments. In December 2005 he had been sentenced to 42 months’ imprisonment for a serious sexual assault on a woman said to have fallen short of an attempted rape. The sentencing judge did not consider the claimant to pose a significant risk of serious harm to the public.

[60] Prior to his conviction the claimant had been diagnosed with pancreatic cancer and was released on bail to undergo surgery; he had not breached the terms of his bail order. By October 2007 the cancer had spread and the claimant started to receive chemotherapy as an out-patient. By January 2008 a consultant estimated the claimant would survive for no more than between four and eight months.

[61] During his stay in prison the claimant attended hospital as an out-patient on 17 occasions between March 2007 and February 2008. On each occasion he attended for chemotherapy he was accompanied by two guards and restrained by handcuffs. At hospital the handcuffs were replaced by a 2.5 metre long escort chain linking a handcuff attached to the claimant and the other end to a prison officer. This was used to facilitate treatment unless the nursing staff said that ordinary handcuffs could remain in place. He had to wait on average 30 minutes per visit in full view of the public until taken and remained handcuffed or restrained with a chain during chemotherapy when a cannula was inserted in his arm – this procedure usually lasted 30 minutes. On one occasion it was alleged the treatment caused the claimant to vomit over the officer to whom he was attached.

[62] The prison authorities indicated the claimant had committed a violent sexual offence, was the subject of MAPPA arrangements and was subject to deportation at the end of his sentence. He continued to deny his guilt in the offence. He had been found guilty at an adjudication in June 2007 of fighting while in prison. Risk assessments were made prior to each hospital visit. These assessments had originally assessed the claimant of medium risk to the public and of medium escape potential. Later these indicators were reduced to low before raising the risk to the public to medium.

[63] The claim was rejected at para 27 of the report:-

“In the present case, the treatment complained of, handcuffing took place over relatively short periods of time while the claimant was outside prison. The handcuffing caused no physical or mental effects. Although suffering from a very serious illness, the claimant was not particularly frail, and apart from one point of disputed evidence, there is no suggestion that he was significantly impeded by handcuffs. The purpose of the handcuffing was not to cause the claimant to suffer inhuman or degrading treatment, or to humiliate him or cause him distress. There is no suggestion that the prison officers acted other than in an appropriate and sympathetic manner throughout.”

And at para 23:-

“In view of the high threshold for a successful Article 3 claim, and the reluctance of the court to impugn an assessment of risk made by prison officials, I conclude that this claim must be dismissed. At its highest, it seems to me that this is a case of what was said in Spinks [supra] to be “an overcautious use of handcuffs”, but as was said in that case, that is not enough to reach the level required for Article 3: see paragraph 47 of Buxton LJ’s judgment.”

[64] In refusing leave to appeal Lord Justice Dyson said at para 40:-

“I appreciate these are troublesome and worrying cases, but it does seem to me that the principles now are pretty well established.”

[65] Sadly Mr Faizovas died about 10 days after the above decision but his daughter was granted leave by the Court of Appeal (Faizovaite v Secretary of State for Justice [2009] EWCA Civ 373) to pursue his complaint that it had been unnecessary for her father to have been handcuffed during visits to hospital.; there had been no physical suffering but there was a sense of humiliation.

[66] In submissions on behalf of the claimant at paras 21 and 22 it was said that Spinks (supra) should now be treated with caution in light of the decision in Uyan (supra) which had now become available. This decision highlighted how security measures imposed at the point of treatment were to be considered separately from the other circumstances and the importance of a risk assessment.

[67] At para 27 Lady Justice Arden found no reason for challenging the decision to use restraints up to the point of treatment. Prison authorities considered there was a risk of escape and harm to the public and this was substantiated by the risk assessments completed prior to each visit. However at para 31 Her Ladyship indicated that the local policy upon which risk assessments were based was:-

 “out of step with the most recent Strasbourg authority…. It did not address the possibility of the particular treatment making it disproportionate to use handcuffs if there was some other practical alternative.”

[68] Nonetheless in the circumstances the court did not find the risk assessments unreasonable and while the claimant had a terminal diagnosis there was not evidence that he could not walk or run and the appeal was refused.

[69] Mr Kelly submitted that the English authorities referred to above amounted to a line of clear and constant jurisprudence which ought to be followed in relation to the use of restraint and handcuffs in assessing whether a breach of article 3 had taken place. See also FGP and R (EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin).

Article 8 case

[70] Mr Kelly submitted that private life in article 8 ECHR has a very wide scope: Pretty v United Kingdom (2002) 35 EHRR 1 at para 61 and Wood v Commissioner of Police of the Metropolis [2010] 1 WLR 123, Laws LJ at para 19:-

“the content of the phrase “private and family life” is very broad indeed….we need if possible to be armed at least with a sense of direction when it comes to disputed cases at the margin.”

[71]It was said in Raninen v Finland (1988) 26 EHRR 563 at para 63 that the Court did not:-

“exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by Article 3.”

[72] In that case however the Court went on to say in para 64:-

“the applicant based his complaint under Article 8 on the same facts as that under Article 3, which the Court has considered and found not to have been established in essential aspects. In particular, it had not been shown that the handcuffing had effected the applicant physically or mentally or had been aimed at humiliating him. In these circumstances, the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on his physical or moral integrity as to constitute an interference with the applicant’s right to respect for private life as guaranteed by Article 8 of the Convention.”

Mr Kelly did however add a caution that Raninen was an older case and he submitted Strasbourg law had moved on since then.

[73] Similar sentiments can be found in Greens, Petitioner 2011 SLT 549  per Lady Dorrian at para [278]:-

“I do not accept the contention for the respondents that no consideration under art. 8 arises if the court has not found a breach of art.3. The ambit of art. 8 is very wide and I agree with Lord Bonomy that the scope of “private life” can include the regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness.”

[74] Where it is alleged there has been interference with an individual’s article 8 rights, the public authority responsible has to show that the interference is lawful, in keeping with the aims of article 8 and necessary in a democratic society see R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621 at para 44 in the speech of Lord Wilson.

[75] A measure which is necessary in a democratic society must be proportionate. A four stage test is set out in R (T) v Secretary of State for the Home Department {2014] UKSC 35 at para 39 where Lord Wilson said of necessity:-

“In this respect one asks first whether the objective behind the interference was sufficiently important to justify limiting the rights of T and B under article 8;

second whether the measures were rationally connected to the objective;

third whether they went no further than was necessary to accomplish it; and

fourth standing back, whether they struck a fair balance between the rights of T and B and the interests of the community.”

[76] The speech of Lord Reed in Bank Mellat v H M Treasury (No. 2) [2014] AC700 at para 68 provides a historical resume of the concept of proportionality which I need not dwell upon but more helpfully at para 74 His Lordship says:-

“The judgment of Dickson CJ in Oakes [R v Oakes [1986] 1 SCR 103] provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment or proportionality into its distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach in Oakes can be summarised by saying that it is necessary to determine

1. Whether the objective of the measure is sufficiently important to justify the limitation of the protected right,
2. Whether the measure is rationally connected to the objective,
3. Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
4. Whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent the measure will contribute to its achievement, the former outweighs the latter…….

 In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

[77] It was in these aspects Mr Kelly submitted that the defences were lacking in essential information. There had been no assessment to ascertain if the use of handcuffs was proportionate.

[78] There was a clear line of ECHR authority which Mr Kelly submitted was in his favour and these principles had been applied in a series of English cases over the last 6-7 years. He submitted that the routine handcuffing of prisoners when receiving treatment at hospital without there being an assessment of the risk in the individual case is likely to be unlawful and in breach of ECHR. Averments about what may have happened if an individualised risk assessment had taken place were, he suggested, nothing to the point.

[79] As regards the threshold test I was referred to Roberts v Chief Constable of the Cheshire Constabulary [1999] WLR 662 where the pursuer recovered £500 damages in respect of being detained unlawfully for 2 â…“ hours.

[80] Finally I was referred to R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 which discussed the “causation test” which highlighted an unpublished policy against the release of foreign national prisoners. It was held that there was no causal effect between the implementation of the unpublished policy because if the published policy had been pursued, the appellants would have been detained in any event. Lord Dyson described the causation test at para 62:-

“The causation test entails the surprising proposition that the detention of a person pursuant to a decision which is vitiated by a public law error is nevertheless to be regarded as having been lawfully authorised because a decision to detain could have been made which was not so vitiated. In my view, the law of false imprisonment does not permit history to be written in this way.”

[81] Accordingly I was invited to reject the defender’s ex post facto            justification for what had occurred during the pursuer’s hospital visits and fix a proof on quantum.

Submissions for the Defender

[82] I was initially referred by Mr Batchelor to the well-known case of Jamieson v Jamieson 1952 SC (HL) 44 and the opinion of Lord Normand at page 50 as to the test of relevance:-

“an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved.”

He suggested the reverse must be true in this context and invited me to repel the pursuer’s 3rd plea-in-law and fix a proof before answer. The onus rests on the pursuer throughout and unless he could show the defender must fail his preliminary could not succeed.

[83] I was referred to the pleadings which averred that the pursuer had been at hospital for 25 minutes on 13 March 2013, 20 minutes on 27 July 2013 and 40 minutes on 21 August 2013. It was denied that he had been handcuffed throughout his treatment on the latter occasion.

[84] The pursuer had a history of violence and of drug smuggling and as with all prisoners in such circumstances outwith prison; there was the risk of escape. In all the circumstances to double handcuff the pursuer was necessary in light of the risks posed. It can be particularly risky when prisoners are attending hospital appointments and as far as possible the exact timing of such appointments is kept from the prisoner to reduce the risk of escape arrangements being made or attempts to pass contraband by hiding it in toilet cubicles etc.

[85] Mr Batchelor agreed with the general propositions set out in the pursuer’s written argument that in the circumstances of the case the defenders could be regarded as a public authority and potentially liable for its actions under sections 6 and 8 of the Human Rights Act 1998. He did take issue with the proposition that the court should follow a decision of the Grand Chamber of the ECtHR or based on “some most egregious oversight or misunderstanding” see McGeoch v Lord President of the Council 2014 SC (UKSC) 25 at para [27]. It was not simply a question of following Strasbourg case law but considering whether there had been a violation of Convention rights.

[86] Mr Batchelor agreed that the court should not treat a decision by the ECtHR on a particular factual situation as a binding precedent and referred me to R (SB) v Governors of Denbeigh High School [2007] 1 AC 100. This was a judicial review taken against the  governors for refusing to allow the claimant, then a 14 year old girl, to attend school wearing a” jilhab” – a long coat like garment which contravened their uniform regulations which include a dress and trousers combination for Muslim girls called a shalwar kameeze.

[87]The case involving an alleged breach of article 9(2) of ECHR and Lord Bingham said at para 26:-

“The school authorities had statutory authority to lay down rules on uniform, and those rules were very clearly communicated to those affected by them. It was not suggested that the rules were not made for the legitimate purpose of protecting the rights and freedoms of others. So the issue is whether the rules and the school’s insistence on them were in all the circumstances proportionate. This raises an important procedural question on the court’s approach to proportionality and, depending on the answer to that, a question of substance.”

[88] Mr Batchelor highlighted another passage of Lord Bingham’s speech at para 29:-

“But the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision…This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6 (1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7 (1) only by a person who is the victim of an unlawful act.”

His Lordship went on to say at para 31:-

“But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”

He suggested that in the present case the absence of risk assessments was not fatal as had such assessments been made the levels of security deployed would have been the same.

Article 3 ECHR arguments

[89] The present case could be contrasted with the circumstances of Mouisel (supra) where at para 47 the court referred the claimant’s being seriously ill, undergoing chemotherapy and being weak; the pursuer was undergoing some tests but there was no suggestion that this affected his general health and physique.

[90] All of the European cases presented in argument on behalf of the pursuer could be distinguished as they involved much more serious circumstances with prisoners being terminally ill, chained to beds for days or subjected to intimate examination or the likelihood of such while handcuffed to police or prison officers.

[91] In the case of Raninen (supra) while he succeeded in his article 5 claim relating to unlawful detention his article 3 and 8 claims in relation to being handcuffed were held not to have been violations of his rights. The Court had stated at para 55:-

“in order to fall within the scope of Article 3, the ill treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health.

Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. In this connection, the public nature of the punishment or treatment may be a relevant factor….it may well suffice that the victim is humiliated in his or her own eye, even if not in the eyes of others.”

[92] It was also relevant to consider para 56:-

“handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful arrest or detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist or abscond, cause injury or damage or suppress evidence.

[93] The Court noted at para 57 that Raninen had:-

“albeit only briefly, been visible to the public on his entering the military police vehicle outside the prison gate. He claimed that he had felt humiliated by appearing handcuffed in front of members of his support group.”

 The applicant had been detained in connection with repeated refusals to carry out compulsory military service and the Court had not been convinced that the handcuffing incident had led to his “undefined psychological disorder” or that the handcuffing was aimed at debasing or humiliating him.

[94] In the case of Tarariyeva (supra) the applicant was on a drip, could not stand unaided and was in no danger of absconding, accordingly the use of handcuffs was disproportionate – unlike the present case where the pursuer was able to walk unaided and appeared in otherwise good health.

[95] Similarly in Istrath (supra) the applicant was recovering after major surgery where a month convalescent period was necessary because of pain and the risk of bleeding. Clearly the decision to handcuff the claimant to a wall heater during this period was grossly disproportionate and a much more serious set of circumstances than alleged in the present case.

[96] The same could be said about Uyan (supra) where the applicant, a female, had been due to undergo a gynaecological investigation but refused to do this while handcuffed and in the presence of several male prison officers. The standard operating procedure (OPI ) under which the defender carried out escort duties on behalf of the Scottish Prison Service (SPS) specifically referred to pregnant women as being a situation where restraint would not normally be required during treatment and double handcuffs would not normally be required in an insecure area, such as a hospital. The Uyan case was of no assistance here.

[97] Turning to Sizarev (supra) the applicant who had sustained multiple injuries when locked in a cell with numerous other prisoners had been handcuffed to a bed in hospital for 16 days; this contrasted markedly to the total of 85 minutes which the pursuer had spent as an outpatient in hospital during three supervised visits.

[98] Referring to Salakhov (supra) Mr Batchelor highlighted the applicant’s HIV status and deteriorating health which once again placed the facts of that case in a much more serious situation than the present one.

[99] Mr Batchelor turned to the domestic cases and once again felt he could highlight more serious circumstances which prevailed in those authorities. In Spinks (supra) the claimant was suffering from terminal cancer of the colon. He was also restrained when recovering from an emergency operation. Even then the Court held the treatment of the applicant had not reached a level of severity sufficient to amount to a breach of article 3.

[100] In JB (supra) the claimant was single handcuffed on two visits to hospital rather than double handcuffs. On one occasion he was accompanied by three officers. On another occasion he was secured by an escort chain during treatment and on a different occasion the claimant was single handcuffed having previously been double handcuffed when a doctor said to officers it would be more convenient during treatment. 

[101] As regards Graham (supra) Mr Batchelor pointed out that he had developed what was described as a “grievous illness” and after concerns that he might die at any time reached the stage that “there was no question of him having the ability to abscond from hospital independently” – see para 3. At para 16 while the Court concluded there had initially been a basis to handcuff on hospital visits as he posed a serious risk to the public were he to escape, there came a time against his deteriorating condition when this was not so. There was no suggestion in the present case that the pursuer’s condition had deteriorated.

[102] I was referred to Faizovaite (supra) at para 27 where the Court said in relation to article 3:-

“As this issue involves the potential application of art 3, this court must subject this case to heightened scrutiny. However that does not mean that the court must engage in a merits review of any decision taken….as to the need for security. It must review the conclusion with care to see whether it is supported by adequate decisions and is one that could reasonably be come to.”

[103] I was also directed to a different passage in Faizovaite at para 22 where Lady Justice Arden said in relation to prisoners who were handcuffed at the point of treatment:-

“In considering whether treatment should take place under such measures, the prison authorities had to take account of not only the security risk but also the type of treatment which the prisoner had to undergo. All of these matters had to be taken into account.”

It was submitted that in the present case the doctors had at no time insisted that the pursuer should be released from his handcuffs.

[104] I was referred to Lord Justice Elias remarks at para 37 of Faizovaite:-

“It follows that a rigid application of the local policy [to retain handcuffs even during treatment] could lead to a breach of art. 3”.

It was submitted that this pointed to a proof being necessary to establish the whole circumstances so that the court could take a view.

Article 8 ECHR arguments

[105]Mr Batchelor pointed out that in Raninen (supra) not only did the claimant lose his article 3 case re handcuffing but also his article 8 case. At para 64 the Court said:-

It had not been shown that the handcuffing had effected the applicant physically or mentally or had been aimed at humiliating him. In these circumstances the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on [h]is physical or moral integrity as to constitute an interference with the applicant’s right to respect for private life as guaranteed by Article 8 of the Convention.”

[106] I was referred back to the case of SB v Governors of Denbeigh High School (supra) in the speech of Lord Bingham at the end of para 30 when he referred to an article by Davies on the  SB case after the decision by the Court of Appeal – see (2005) 1:3 European Constitutional Law Review 511:-

“”The retreat to procedure is of course a way of avoiding difficult questions” But it is in my view clear that the court must confront these questions, however difficult. The school’s action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so.”

[107] Mr Batchelor submitted that the absence of individual risk assessments was not fatal as Lord Bingham said in SB (supra) at para 31:-

“But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”

In the present case it was suggested the outcome would have been the same had such risk assessments been carried out prior to each hospital visit. The absence of such assessments is only one factor out of a number which the court has to consider.

[108] At para 68 of SB Lord Hoffman said in this context one was “concerned with substance rather than procedure” and concluded:-

“The most that can be said is that the way in which the school approached the problem may have to persuade a judge that its answer fell within the area of judgment accorded to it by law.”

The pursuer had not complained about his treatment at the time; in SB (supra) the respondent had worn the prescribed uniform without complaint for two years.

[109] In the present case the pursuer was serving a sentence for a serious offence and restraint for security purposes was justified therefore the pursuer could not claim a remedy under the Human Rights Act. In McGeoch (supra) the challenge against the blanket ban on prisoners voting failed on the particular circumstances of the pursuer’s case.

[110] As was said in JB (supra) at para 23:-

“Article 3 does not bite if handcuffing has been imposed in connection with lawful detention, provided the force and public exposure does not exceed that which is reasonably considered necessary by the public authority carrying out the handcuffing. The question is was that decision unreasonable or unlawful, in that it breached the claimant’s human rights. These issues really boil down to a question of judgment. There is also woven into the question, the issue of whether the decision making process was flawed.”

Discussion

[111] I am grateful to the agents for their comprehensive arguments, the preparation of written submissions and providing a comprehensive volume of authorities. I have taken some time to record what I regard as the salient points and key quotations from the authorities. I appreciate that whatever further procedure takes place in this case it will be necessary for others to consider the circumstances against the law as it has developed and the various considerations which obtain in this context, although not all apply here.

[112] While the detention and handcuffing of individuals is necessary in a democratic society to ensure the operation of a fair criminal justice system, as can be seen from the above authorities the use of detention and restraint must be necessary and proportionate in all the circumstances. There is no criticism that the pursuer is in prison at present having been sentenced to nine years’ imprisonment for attempted murder. The pursuer also has a previous conviction for assault to severe injury and permanent and disfigurement. He is aged 53.

[113] There are conditions in the secure prison regime where prisoners are kept which do not require them to be handcuffed. However when prisoners are transported outwith this secure regime to attend court, hospital or a close family funeral handcuffs usually are required and the prisoner will be accompanied by two or more officers.

[114] It is within judicial knowledge that special permission is sought from the judge when prison officers wish to bring a prisoner into court in double handcuffs. A form is produced for consideration and details are given whether a risk of violence, or escape or for other reasons special measures of security are sought. These forms have been in use for a number of years and certainly since the movement of prisoners was taken over by private companies. In most cases the semi-secure environment in court and the use of escorting officers and a police presence ensures that most prisoners can appear without recourse to restraint. Arrangements are made to ensure all prisoners can appear at trial without the use of restraints. If need be special security arrangements may need to be in place so that an accused appearing from custody can participate in his trial before a jury without the use of restraints which may convey the wrong impression.

[115] The pursuer bases his claim on the use of double handcuffing and the use of restraints when undergoing medical treatment and investigations in respect of repeated headaches, he seems to have underlying ischaemic heart disease. The facts largely are not in dispute between the parties though the most serious allegation namely that the pursuer was doubly restrained while he underwent a CT scan on 21 August 2013 is denied.

[116] ECHR law is quite clear that alleged violations of article 3 raised by prisoners who are handcuffed in appropriate circumstances will not be entertained unless a minimum level of severity is established. Where an article 3 violation is not established in this context an article 8 contravention may occur and arise from the same facts.

[117] In the cases to which I have been referred there have been situations established where it is easy to see, particularly with the wisdom of hindsight, that the use of handcuffs, double handcuffs or other means of restraint amounted to contraventions of articles 3 and 8 of ECHR. Due to the living nature of the Convention and the varying circumstances which have been considered certain principles have evolved which require to be followed at a day-to-day level by those involved in carrying out the lawful task of detaining or ensuring the continued detention of those for whom there has been due process and a lawful decision taken to imprison.

[118] In Kudla (supra) assessment of the minimum involves consideration of sex, age and health of the individual. Handcuffing prisoners, particularly when they are patients, to equipment or fixtures for any length of time perhaps instead of supervision is likely to raise article 3 questions unless the circumstances are exceptional. Circumstances may change with an individual where his deteriorating health may reach the stage where it transcends the necessary security measures which have been taken in light of the nature of the offences for which the prisoner has been remanded or sentenced.

[119] While hospitals are not normally designed to have the same level of security as prisons ECHR jurisprudence is clear that where a prisoner is undergoing treatment other arrangements can often be made by deploying his escort in such a way that security is maintained while the prisoner can consult, receive treatment, discuss medical circumstances and be examined, intimately if need be, without being restrained or having prison officers in close proximity violating rights of privacy.

[120] There require to be rules to manage the movement of prisoners so that they are able to access medical treatment in the same way as other citizens. These rules need to be kept up to date in light of developments in law and need to provide escorting officers with some discretion or options to cope with a variety of circumstances.

[121] The established line of European authorities is supplemented by a line of English authorities involving the use of handcuffs. The critical feature in those cases is the use of assessments to determine risk and measures required to maintain the level of security to prevent escape and protect the public yet enable the prisoner to receive treatment, recuperate or perhaps be made as comfortable as possible when illness has become terminal, strength has ebbed away and discomfiture has increased.

[122] Risk assessments appear to have been the norm in England and Wales in the cases to which I was referred in every occasion where prisoners were taken to hospital. I was informed that these visits can be occasions where in addition to the opportunity to escape since the surroundings are less secure than prison there is the possibility of arrangements being made to hand over contraband to the prisoner – see JB (supra). Frequently appointment dates are kept secret from the prisoner until the last minute to preclude the possibility of plans to be laid between the prisoner and outside accomplices. Any categorisation which the prisoner has been involved in may be departed from when his security circumstances are assessed for a visit to hospital.

[123] By contrast in the present case it is admitted no such risk assessments were undertaken prior to the three hospital visits, although it is submitted had they been carried out the outcomes would have been the same. It was submitted that there was a blanket policy in place; a one-size-fits-all approach which was overshadowed by commercial considerations and performance indicators involving fines levied upon contractors such as the defender each time a prisoner escaped. Whatever the background it was submitted that the defender operated an entirely risk averse approach which did not consider the pursuer’s circumstances, feelings or the proportionality of the steps taken, in all the circumstances.

 

 

 

Decision

[124] The defender’s position is that there should be a proof before answer to determine all of the facts and in that way the court can assess whether the minimum threshold for a violation of articles 3 and/or 8 has been reached. The pursuer submits on the pleadings since no risk assessments took place prior to the pursuer’s visits to hospital they did not respect his rights and feelings and as a result he felt humiliated when taken through public areas of the hospital while double handcuffed and when waiting for his appointments. In addition he remained restrained during those appointments.

[125] While there is a dispute about whether the pursuer was restrained during a CT scan or not it was accepted that taking all of these instances at their highest the effect would be at the lower end of the scale compared to some of the grievous violations recorded in the authorities e.g. Roberts or Graham (supra) rather than Salakhov (supra). What Mr Kelly sought on the pleadings was a declaration that the pursuer’s rights had been violated; thereafter evidence could be heard to ascertain the precise extent whereupon a determination could be made on the amount, if any, of just satisfaction which was due.

[126] There is a clear line of ECtHR authority from Kudla (supra) in 2000 and Raninen (supra) in 1998 that in certain circumstances handcuffing and other measures of restraint may be inappropriate or disproportionate in an otherwise lawful context when the health, welfare, public exposure or other circumstances affecting the prisoner at the time are such that normal measures are not necessary and indeed may reach the threshold of ill treatment resulting in anguish, inferiority, humiliation, distress or discomfort.

[127] The line of English authorities from Spinks (supra) to FGP (supra) is helpful in providing examples of less extreme conduct but the main theme is that blanket policies or an over cautious approach to the need and level of handcuffing have been flagged up as areas where the custodial authorities and their private partners need to show respect, proportionality and flexibility especially where a prisoner’s condition deteriorates.

[128] On each occasion there seemed to be ample officers guarding the pursuer. It ought to have been possible to have him single handcuffed to one officer and tightly flanked by the other or others when moving about the hospital and in the waiting areas. If steps like these had been taken the whole exercise would have been less obvious to the public, less intrusive for the pursuer yet retained a necessary level of security befitting a long-term prisoner. There is in the defender’s pleadings the obvious flaw that no risk assessment was carried out as to the nature and level of security required for each visit. Perhaps the overall involvement of the Scottish Prison Service and the private service providers at Addiewell prison as well as the defenders who accept responsibility for the lawful custody of the pursuer at the material times results in an over-cautious, risk averse, penalty avoidance culture. This need not be over-analysed but it may point to how the Standard Operating Procedure governing the movement of prisoners to and from hospital and while there undergoing treatment, may lag behind the developing law in this context.

[129] When the pursuer was being examined or treated it should be clear that privacy has to be respected and any requests by doctors acceded to where possible and necessary for examination, treatment or consultation.

[130] Although the allegation mentioned in the last visit is disputed I am of the view the circumstances surrounding the pursuer’s visits to hospital are such that they meet the minimum threshold for the court to consider as violations of the pursuer’s article 3 and 8 rights, albeit at the lower end of the scale. Accordingly I uphold the pursuer’s preliminary plea, grant declarator that the use of restraint during the pursuer’s hospital visits on 13 March, 27 July and 21 August 2013 was incompatible with the pursuer’s rights under articles 3 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950.  I will cause the case to be set down for further procedure with a view to, if advised, fixing a proof on quantum.

 

 

 

 

                                                                        Sheriff of Lothian and Borders