APPEAL BY JAMES MCDOWALL AGAINST G4S CARE AND JUSTICE SERVICES (UK) Ltd [2016] ScotSC 11 (23 February 2016)

APPEAL BY JAMES MCDOWALL AGAINST G4S CARE AND JUSTICE SERVICES (UK) Ltd [2016] ScotSC 11 (23 February 2016)

The sheriff erred in holding that the absence of an individualised risk assessment was fatal to the defenders' case and in granting declarator without proof of the disputed facts. Whether the use of restraint breached Articles 3 or 8 ECHR depends on all the circumstances, which require to be established at proof. The appeal is allowed, the sheriff's decision is recalled, and the case is remitted for proof before answer on the parties' averments.

Citation
[2016] ScotSC 11
Parties
Pursuer and Respondent: James McDowall; Defenders and Appellants: G4S Care and Justice Services (UK) Limited
Jurisdiction
Scotland
Judgment Date
23 February 2016
Procedural Posture
Civil Appeal / Appeal Against Sheriff's Decision After Debate, Remitted for Proof Before Answer
Outcome
Appeal allowed; sheriff's decision recalled; case remitted for proof before answer.
Legal Topics
European Convention on Human Rights, Article 3 ECHR, Article 8 ECHR, Use of Restraints on Prisoners, Proportionality, Risk Assessment, Proof Before Answer
Human Rights Law Prison Law Civil Procedure European Convention on Human Rights Article 3 ECHR Article 8 ECHR Use of Restraints on Prisoners Proportionality +2 more

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Parties

James McDowall

Pursuer and Respondent

G4S Care and Justice Services (UK) Limited

Defenders and Appellants

Procedural Posture

Civil Appeal / Appeal Against Sheriff's Decision After Debate, Remitted for Proof Before Answer

Legal Issues

  1. 1 Whether the use of double handcuffing and restraint during hospital visits breached the pursuer's rights under Articles 3 and 8 ECHR
  2. 2 Whether absence of an individualised risk assessment is fatal to the defenders' case
  3. 3 Whether the sheriff erred in granting declarator without proof of disputed facts

Ratio Decidendi

The sheriff erred in holding that the absence of an individualised risk assessment was fatal to the defenders' case and in granting declarator without proof of the disputed facts. Whether the use of restraint breached Articles 3 or 8 ECHR depends on all the circumstances, which require to be established at proof. The appeal is allowed, the sheriff's decision is recalled, and the case is remitted for proof before answer on the parties' averments.

Court Disposition

Appeal allowed; sheriff's decision recalled; case remitted for proof before answer.

Orders

  • Repels the pursuer's third plea in law.
  • Allows parties a proof before answer on their respective averments and remaining pleas in law.