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The first sentence in that passage repeats the summary of the earlier case law in para 59 of the Hussain judgment. PRE |
The second sentence repeats the principle stated in para 60 of that judgment. PRE |
Although Waite, like Hussain and Singh, concerned a person who had committed the index offence as a young offender, the language of the second sentence is not confined to young offenders. PRE |
The conditions mentioned by the European court are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. Ratio |
That is not to say that they will necessarily apply on every occasion when such a prisoners case is considered by the board: a prisoners case may be considered in different circumstances and at different intervals of time. Ratio |
Bearing in mind however that the continued detention of a post-tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity... |
That is consistent with the common law, as explained earlier. Ratio |
Since the board failed in its duty of procedural fairness to the appellants at common law, it follows that it also failed to act compatibly with article 5(4). Ratio |
Damages Ratio |
The appellant Reilly sought to have his case remitted to the High Court for consideration of an award of damages as just satisfaction under section 8 of the Human Rights Act. Ratio |
The circumstances in which such an award is appropriate in respect of a breach of article 5(4) were considered in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157. PRE |
Although that case was principally concerned with breaches of the requirement that a review of the lawfulness of detention must be held speedily, the court also considered violations of the requirement that reviews must follow a fair procedure. PRE |
At paras 55-61, the court considered in particular the judgment of the Grand Chamber in Nikolova v Bulgaria (1999) 31 EHRR 64 and the later judgment in HL v United Kingdom (2004) 40 EHRR 761. PRE |
In the latter case, Nikolova was described as having endorsed the principle that, where a violation of article 5(3) or (4) was of a procedural nature, just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty which would not otherwise have occurred. PRE |
Although, as was noted in Faulkner at para 61, there have been cases since Nikolova, not concerned with delay, in which modest awards of damages have been made as compensation for frustration and anxiety, none of those cases is comparable with that of the appellant. PRE |
In particular, the cases mentioned there which concerned post-tariff indeterminate sentence prisoners, such as Curley v United Kingdom (2000) 31 EHRR 401 and Von Blow v United Kingdom (2003) 39 EHRR 366, date from the period when there was no review of the continued lawfulness of detention by a body with the power to o... |
It is not argued that the appellant Reilly has suffered any deprivation of liberty as a result of the breach of article 5(4): damages are sought in respect of feelings of frustration and distress which the court is invited to assume he experienced. Ratio |
In the circumstances, taking into account the principles applied by the European court as required by section 8(4) of the Human Rights Act, the finding of a violation constitutes sufficient just satisfaction. Ratio |
Conclusion RPC |
I would in each case allow the appeal, and make a declaration that the board breached its duty of procedural fairness to the appellant by failing to offer him an oral hearing, and was accordingly in breach of article 5(4) of the Convention. RPC |
On 5 September 2004 the appellant Kevin Ruddy was arrested by two officers of Tayside Police in execution of a warrant for his arrest and taken to Perth police station. FAC |
The following day he was taken by two officers of Strathclyde Police by car from Perth police station to Partick police station in Glasgow. FAC |
He alleges that he was abused, threatened with violence and assaulted by the Strathclyde police officers before, during and after that journey as a result of which he suffered injury. FAC |
He decided to take proceedings against the Chief Constable of Strathclyde Police for damages, and he applied for legal aid. FAC |
His application for civil legal aid was intimated to the Chief Constable in November 2004. FAC |
Strathclyde Police treated this intimation as a complaint and remitted the matter to its Complaints and Discipline Branch (the Complaints Branch). FAC |
In December 2004 the Complaints Branch reported receipt of the complaint to the Procurator Fiscal for Glasgow. FAC |
On 10 January 2005 the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. FAC |
On 13 January 2005 Inspector Darroch of the Complaints Branch was appointed to carry out the investigation. FAC |
On 14 March 2005, having completed his investigation, he submitted his report to the Procurator Fiscal. FAC |
On 10 May 2005 the appellant was interviewed by staff from the Procurator Fiscals office and he was precognosced. FAC |
On 6 June 2005, having considered Inspector Darrochs report and a medical report which had been instructed by the appellants solicitor, the Procurator Fiscal wrote to the appellant to inform him that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. FAC |
The Complaints Branch then reviewed the complaint. FAC |
By letter dated 22 June 2005 the Chief Superintendent of the Complaints Branch wrote to the appellant to inform him that Strathclyde Police did not consider it necessary to take any proceedings for misconduct against the police officers. FAC |
The proceedings FAC |
In August 2005 the appellant commenced proceedings in the Sheriff Court at Glasgow in which he sought an award of damages. Ratio |
Two separate craves were set out in the initial writ. Ratio |
First, there was a claim of damages against the Chief Constable of Strathclyde Police. Ratio |
This award was sought at common law for loss, injury and damage alleged to have suffered as a result of the actings of the police officers and as just satisfaction under section 8(3) of the Human Rights Act 1998 for a breach of the appellants rights under article 3 of the European Convention on Human Rights, for both o... |
Second, there was a claim of damages against the Chief Constable and the Lord Advocate jointly and severally. Ratio |
This award was sought as just satisfaction under section 8(3) of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998 for a breach of the appellants right under article 3 of the Convention to an effective investigation into his complaint. Ratio |
The Chief Constable and the Lord Advocate (the respondents) lodged answers to the initial writ in which they took pleas to the relevancy of the averments that were made against them. FAC |
They did not challenge the competency of the action. FAC |
On various dates between November 2006 and April 2007 the sheriff heard a debate in which the respondents argued that the claim that was made against them for breach of the procedural obligation under article 3 of the Convention was irrelevant. FAC |
On 5 June 2007 the sheriff held that this claim was irrelevant, refused to allow the second crave to go to proof so far as it was directed against the Chief Constable and dismissed the action so far as it was directed against the Lord Advocate. RLC |
The appellant appealed to the Sheriff Principal. RLC |
On 25 April 2008 the Sheriff Principal refused the appeal. RLC |
In the course of the hearing of the appeal the appellant was given leave to amend his pleadings so as to direct the second crave against the respondents severally rather than jointly and severally. FAC |
The appellant then appealed to the Inner House of the Court of Session. RLC |
A hearing was set down for 7, 8 and 9 December 2010. RLC |
When the case called before an Extra Division (Lady Paton, Lord Clarke and Lord Abernethy) on 7 December 2010 the court informed counsel that it seemed to it, having considered the papers before the hearing, that the case raised fundamental questions of competency. RLC |
It was suggested that, while it was competent to bring a claim for damages at common law in the sheriff court, the second crave was a distinct and separate claim which raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session. RLC |
The court adjourned the hearing to 2.00 pm to allow counsel to consider this issue. RLC |
Having heard argument on the point, it discharged the remainder of the appeal hearing and made avizandum. RLC |
At advising on 2 March 2011 the Extra Division issued an opinion which had been prepared by Lord Clarke in which he dealt with the point that had been raised at the hearing on 7 December 2010: [2011] CSIH 16, 2011 SC 527. RLC |
He said that, on further consideration, the problems appeared to the court to be even greater than had been discussed at that hearing and then set out the courts reasons for holding on other grounds that the action as a whole was incompetent. RLC |
As indicated in para 16 of the opinion, the case was put out By Order on 8 March 2011 to allow the parties to make any representations that they wished to make before the court pronounced any further interlocutor. RLC |
Counsel for the appellant did not ask for time to make any representations. RLC |
On the motion of the respondents the court then pronounced an interlocutor dismissing the action. RLC |
The appellant has now appealed to this court. RLC |
The issues as to competency Ratio |
The background to the issues raised by the appeal is provided by the following comments that Lord Clarke made in para 5 of his opinion after he had summarised the appellants pleadings: Any practitioner in the business of civil litigation might, when faced with this omnibus approach to several claims in a single action,... |
He or she might reflect that in a single sheriff court action a straightforward claim for damages for assault finds itself coupled with (a) a claim for breach of the substantive obligation under article 3 of the Convention and (b) claims against two defenders severally for breaches of the obligation arising under the a... |
One action is being brought against two separate defenders with three distinctive juristic bases of claim being made. Ratio |
The objections that the Extra Division took to the competency of the action, on closer examination, were as follows. Ratio |
First, there was the point that was raised with counsel at the hearing on 7 December 2010. Ratio |
At that stage it was directed to the subject matter of the second crave, in which damages are claimed for a failure to carry out an investigation which was compliant with article 3. Ratio |
Second, there was the fact that the proceedings sought to address three distinct issues against two separate defenders. Ratio |
This appears to have been a new point, as it had not been discussed at the hearing on 7 December 2010. Ratio |
The first objection was summarised by Lord Clarke in these words in para 6: What the appellants averments in articles 8, 9, 10 and 11 seek, in substance, is to have reviewed the investigatory proceedings that have been carried out so far, to have a finding that these proceedings were incompatible in some way with artic... |
That is quite simply a separate and distinct claim in law from a claim based on common law assault and deals with quite distinct subject-matter in fact and law. RLC |
This claim, when properly analysed, involves an attack, in administrative law, on administrative acts and decisions, namely the administration of the complaints procedure in the instant case and possibly also an attack on the adequacy or otherwise of established procedures in general. RLC |
He said that it raised questions which, normally at least, would require to be made the subject of judicial review in the Court of Session. RLC |
Returning to this point in para 14, Lord Clarke indicated that this objection extended to the claim for just satisfaction for breach of the substantive obligation under article 3 that was the subject of the first crave as well that which was the subject of the second crave. RLC |
He said that the claims would require to be brought by way of judicial review. RLC |
This was because, once unshackled from the claim of damages for assault, the appellants claims involving human rights questions required the procedures in question to be reviewed and tested in accordance with administrative law principles: Clyde and Edwards, Judicial Review (2000), para 8.16; Cocks v Thanet District Co... |
The second point was summarised by Lord Clarke in these words in para 12: It is a well established principle of our law and procedure that one pursuer cannot sue two or three defenders for separate causes of action, and put into his summons a conclusion for a lump sum, and then by means of putting in the words jointly ... |
The present proceedings seek to address three distinct issues, distinguishable in fact and law, against two separate defenders. RLC |
Our system of pleading does not provide, nor should it provide, for such an approach. RLC |
To countenance such a procedure would, among other things, fly in the face of the practice in relation to conjunction of processes. RLC |
This attempt at an omnibus approach to pleading distinct causes of action against different defenders in the same action also runs counter to the approach of the court in relation to counterclaims. RLC |
What the appellant was seeking to do in these proceedings, he said, was to bring an action against two defenders in a case of unconnected wrongs. RLC |
This objection was taken to the proceedings as a whole, the question being whether it was competent for the appellant to raise in a single action a common law assault claim against the Chief Constable and a procedural article 3 claim against the Chief Constable and the Lord Advocate. RLC |
It was a ground for dismissing the whole case as incompetent. RLC |
In para 15 Lord Clarke said that it seemed to the court that another problem of competency was perhaps raised, which was this: can there be two distinct defenders in relation to alleged breaches of the states obligations under article 3 of the Convention? As this matter had not been discussed at all the court expressed... |
This objection, it seems, was to the fact that the procedural article 3 claim was the subject of a crave directed against the Chief Constable and the Lord Advocate severally. RLC |
The issues that are raised by this appeal can therefore be summarised as follows: (1) Was it competent for the appellant to bring his claims for damages in respect of the substantive article 3 claim and the procedural article 3 claim, or either of them, by way of action or did he require to bring them, or either of the... |
Mr Anderson QC for the respondents did not seek to support the reasoning of the Extra Division on the first issue. ARG |
He said that he was in broad agreement with the way the appellant presented his argument, but he drew attention to the way Lord President Hamilton analysed the case in Docherty v Scottish Ministers [2011] CSIH 58, 2012 SC 150, paras 19-20 which indicated that the courts remarks on this point did not form part of the re... |
He did however seek to support the Extra Divisions conclusion on the second issue, which was that the action as a whole as pled was incompetent. ARG |
Discussion Ratio |
This is a highly unusual case, not only because of the way the claims that the appellant is seeking to make are presented in the pleadings but also because of the way it was dealt with by the Extra Division. Ratio |
It is, of course, always open to the court to raise question about the competency of proceedings that are brought before it. Ratio |
And, as the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with the judgment of the Inner House as to whether proceedings with which it has to deal are competent. Ratio |
As in so many other matters, this court is guided by the practice of the House of Lords before the appellate jurisdiction of the House was transferred to it in October 2009. Ratio |
In Cowan & Sons v Duke of Buccleuch (1876) 4 R (HL) 14, 16 Lord Chancellor Cairns said: In matters of procedure and practice, and still more in matters of discretion, and, above all, where the Judges of the Court below are unanimous as to a matter of procedure and practice, the uniform practice of your Lordships House ... |
That remains true today, and nothing that I am about to say is intended in any way to depart from it. Ratio |
Regrettably, however, it is clear that the test which he laid down is entirely satisfied in this case. Ratio |
(a) the first issue Ratio |
It is clear from Lord Clarkes opinion, and the narrative of events that the court has been provided with by counsel, that the idea which first attracted the Extra Divisions attention was that the subject matter of the second crave raised issues that ought to have been the subject of proceedings by way of judicial revie... |
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