JAMES MCDOWALL AGAINST G4S CARE AND JUSTICE SERVICES (UK) Ltd [2015] ScotSC 37 (13 May 2015)

JAMES MCDOWALL AGAINST G4S CARE AND JUSTICE SERVICES (UK) Ltd [2015] ScotSC 37 (13 May 2015)

The court held that the absence of an individualised risk assessment and the application of a blanket policy of double handcuffing raised a relevant case for potential breach of articles 3 and 8 ECHR. The pursuer's averments, if proved, could establish that the treatment was disproportionate and unlawful. The matter should proceed to proof on quantum.

Citation
[2015] ScotSC 37
Parties
Pursuer: James McDowall; Defender: G4S Care and Justice Services (UK) Limited
Jurisdiction
Scotland
Judgment Date
13 May 2015
Procedural Posture
Civil (damages Under Human Rights Act 1998) / Debate on Preliminary Plea
Outcome
Pursuer's preliminary plea sustained in part; proof on quantum ordered.
Legal Topics
Use of Restraint on Prisoners, Article 3 ECHR (inhuman or Degrading Treatment), Article 8 ECHR (private Life), Risk Assessment, Proportionality, Damages for Breach of Human Rights
Human Rights Law Prison Law Tort/delict Use of Restraint on Prisoners Article 3 ECHR (inhuman or Degrading Treatment) Article 8 ECHR (private Life) Risk Assessment Proportionality +1 more

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Parties

James McDowall

Pursuer

G4S Care and Justice Services (UK) Limited

Defender

Procedural Posture

Civil (damages Under Human Rights Act 1998) / Debate on Preliminary Plea

Legal Issues

  1. 1 Whether the routine use of double handcuffs on the pursuer during hospital visits, without individual risk assessment, breached articles 3 and 8 ECHR.
  2. 2 Whether the absence of an individualised risk assessment renders the defender's actions disproportionate and unlawful under the Human Rights Act 1998.
  3. 3 Whether the pursuer is entitled to damages and a declaration of incompatibility.

Ratio Decidendi

The court held that the absence of an individualised risk assessment and the application of a blanket policy of double handcuffing raised a relevant case for potential breach of articles 3 and 8 ECHR. The pursuer's averments, if proved, could establish that the treatment was disproportionate and unlawful. The matter should proceed to proof on quantum.

Court Disposition

Pursuer's preliminary plea sustained in part; proof on quantum ordered.

Orders

  • Proof on quantum to be fixed.
  • No dismissal of action at this stage.