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Cite as: 2005 1 SC 307, [2005] CSIH 16, 2005 SLT 379, [2005] UKHRR 268, [2005] ScotCS CSIH_16, 2005 GWD 9-136

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Napier v. The Scottish Ministers [2005] ScotCS CSIH_16 (10 February 2005)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Osborne

Lord Hamilton

[2005CSIH16]

P739/01

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

RECLAIMING MOTION

PETITION and ANSWERS

in the cause

ROBERT NAPIER

Petitioner and Respondent;

against

THE SCOTTISH MINISTERS

Respondents and Reclaimers:

_______

Act: O'Neill, Q.C., Collins; Balfour & Manson (Petitioner and Respondent)

Alt: Brailsford, Q.C., Howie, Q.C.; R. Henderson (Respondents and Reclaimers)

10 February 2005

Introduction
[1] In these proceedings for judicial review the Lord Ordinary on 26 April 2004 found and declared that the respondents had acted unlawfully in terms of section 6 of the Human Rights Act 1998 (the Act) and ultra vires in terms of section 57 of the Scotland Act 1998 by acting in a manner incompatible with Article 3 of the European Convention on Human Rights (the Convention) and detaining the petitioner in conditions in which he was subject to degrading treatment in May and June 2001. He found and declared that the petitioner had suffered loss, injury and damage by reason of the fault of the respondents, and found them liable to pay damages to the petitioner of £2,450 with interest at 8 per cent from the date of decree until paid. He sustained certain pleas in law for the petitioner to the extent necessary to give effect to these determinations, and repelled certain pleas for the respondents.

[2] The Lord Ordinary's decision in regard to Article 3 was not founded merely on the conditions which prevailed in C Hall of H.M. Prison, Barlinnie, Glasgow where the petitioner had been detained, but upon the whole circumstances as they had affected the petitioner, including the physical and mental effects and the state of his health (paragraph 75 of his Opinion). Of crucial importance to his determination was the effect on the petitioner of a serious outbreak of eczema (paragraph 76). He expressed the view that, even if he were wrong in his conclusion in regard to Article 3, there had been a prima facie breach of Article 8 of the Convention. He decided that his award of damages for fault, when taken along with his finding that Article 3 was infringed, would be just satisfaction for the purpose of section 8 (3) of the Act (paragraph 94).

[3] The respondents marked a reclaiming motion against the interlocutor of the Lord Ordinary, and on 16 June 2004 lodged their grounds of appeal. However, in June 2004 the parties entered into an agreement, by which the respondents agreed to pay the petitioner the sums which the Lord Ordinary had found due to him, and to pay him his taxed expenses in the Outer House. It was agreed that neither of these payments would be returnable under any circumstances, such as, for example, in the event of the respondents' reclaiming motion being successful. Both sums were thereafter paid. Accordingly there is no longer any issue between the parties as to either damages or expenses.

[4] When the reclaiming motion came before the court for a hearing it was maintained by Mr O'Neill for the petitioner that any issues relating to the petitioner's claim had become academic and accordingly should not be entertained by the court. At the same time he left it to the court to decide whether there were any legal questions of general importance arising out of the Lord Ordinary's opinion on which it might be willing to hear argument. While it was no doubt well settled that the court would not entertain debate about academic issues relating to matters of private right, it was open to the court to take a different view where a discussion was considered to be in the public interest, in the light of the likelihood of there being similar cases in the future. Reference was made to the speech of Lord Slynn of Hadley in R v Secretary of State for the Home Department ex part Salem [1999] 1 AC 450, in which he accepted at page 456 that, in a cause where there was an issue involving a public authority as to a question of public law, there was a discretion to hear the appeal, even if, by the time that it reached the House, there was no longer a lis to be decided which would directly affect the rights and obligations of the parties inter se. He went on to state on page 457:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future".

[5] For the respondents Mr Brailsford accepted that in the light of the monetary settlement the petitioner had no practical interest in the outcome of the reclaiming motion. He accepted that there was force in the view that the court should not entertain grounds of appeal which were specific to the petitioner's claim and circumstances. He accepted that grounds 2 and 3 could be so described. However, he invited the court to consider the entertaining of argument in regard to the remaining grounds of appeal.

[6] Having heard the submissions of counsel we were not satisfied that, in the light of the settlement of the petitioner's claim, it would be appropriate for us to entertain argument in relation to grounds 2, 3 and 4, which were linked to the petitioner's claim. In saying that, we should not, of course, be understood as expressing any view on the merits of the petitioner's claim, let alone those of the claimant in any similar case.

[7] On the other hand, we considered that there might be instances, as was envisaged by Lord Slynn, in which it would be in the public interest that an issue of general importance arising out of an academic appeal should, if possible, be resolved. We were satisfied that in the unusual circumstances of the present case we should hear argument in regard to grounds 1 and 5, in so far as they were concerned with matters of general legal principle, with a view to making, if possible, a declaratory order under Rule of Court 58.4(b). In the event, Mr Brailsford did not insist on ground 5, with the result that the only matter which was debated was the general legal principle with which ground 1 is concerned, namely the appropriate standard of proof to be applied in civil domestic proceedings in determining whether or not there has been a breach of Article 3. In paragraph 74 of his Opinion the Lord Ordinary stated that he had been briefly addressed on this matter, and that he considered that the ordinary standard in civil litigation, namely proof on the balance of probabilities, was appropriate. We turn now to that question.

The standard of proof

The contention for the respondents

[8] In the first ground of appeal the respondents contend that, in determining whether or not there has been a breach of Article 3, the standard of proof in proceedings in Scotland is proof beyond reasonable doubt.

[9] The respondents rely upon the fact that the European Court of Human Rights has regularly stated that it applied this standard of proof to evidence relating to such cases before it. It appears that this practice dates from the decision in Ireland v United Kingdom (1978) 2 EHRR 25, in which, at paragraph 161, the Court agreed with the European Commission in the adoption of that standard of proof in that case and in an earlier case (The Greek Case (1969) E.C.H.R. Handbook 1972 at page 196), and rejected the contention of the Irish government that this was excessively rigid. In The Greek Case the Commission said at paragraph 30 that " in each case the allegations of torture or ill-treatment, as breaches of Article 3 of the Convention, must be proved beyond reasonable doubt. A reasonable doubt means not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be given drawn from the facts presented". The European Court made similar statements in later cases, such as the recent decisions in Farbtuhs v Latvia (application No.4672/02) 2 December 2004 at paragraph 54, and, in regard to Article 14, in Nachova and Others v Bulgaria (applications Nos. 43577/98 and 43579/98) 26 February 2004 at paragraph 166. It may be noted that in the first of these cases the court referred to the test as being " beyond all reasonable doubt" (au-delà de tout doute raisonnable).

[10] For the respondents Mr Brailsford also relied on the terms of section 2(1) of the Human Rights Act 1998 which states, inter alia, that a court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court, whenever made or given, so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen. He reminded the court of the remarks of Lord Slynn of Hadley in R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 295, in which he said at paragraph 26:

"Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence".

In this connection the respondents also referred to the observations of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 2 AC 323, where he said at paragraph 20:

"This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be positively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less".

[11] Mr Brailsford submitted that, in view of the seriousness and importance of an allegation of a breach of Article 3, there was much to commend the use of a standard of proof beyond reasonable doubt. This also had the merit of consistency with the approach taken by the European Court. He therefore invited this court to find and declare that, in civil proceedings in Scotland where a breach of Article 3 was alleged, the standard of proof which fell to be applied was "proof beyond reasonable doubt" as this is understood by the European Court.

Discussion

[12] At the outset it is important, in our view, to look more closely at the relationship between the European Court and national courts. Part of the Strasbourg jurisprudence concerns the margin of appreciation which is left to the judgment of national authorities. As Lord Hope of Craighead pointed out in R v D.P.P. ex parte Kebiline [2000] 2 A.C.326 at page 380, this means that "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights". In the present case we are not concerned with the interpretation of the Convention, but with the question whether an evidential standard which in practice is applied by the European Court should also be applied by this national court.

[13] As was pointed out by Mr O'Neill for the petitioner, the European Court has never stated that national courts should apply any particular standard in determining whether there has been a breach of a Convention right. Furthermore, it is plain that, in general, the European Court leaves it to the national courts to make its own assessment as to whether in the circumstances, a Convention right has been breached. This would tend to indicate that it is for the national court to decide what standard it should apply for that purpose. In this connection it is instructive to consider the remarks of the European Court in Tanli v Turkey (application no.26129/95) 10 April 2001 in regard to the assessment of the facts of the case. It said at paragraph 110:

"The Court is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see e.g. McKerr v The United Kingdom [decision], no.28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see the Klaas v Germany judgment of 22 September 1993, Series A no. 269, p.17, § 29). Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see the Klaas judgment cited above, p. 18, § 30)"

[14] Next, it is important, in our view, to place the adoption by the European Court of proof "beyond reasonable doubt" in the context of the approach taken by that court to the evidence in cases. In Ireland v United Kingdom, in which the European Court agreed at paragraph 161 with the adoption of that formula, it added that "such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context the conduct of the Parties when evidence is being obtained has to be taken into account". It made a similar comment in a number of subsequent cases. In Nachova and Others v Bulgaria the court stated at paragraph 166:

"It has been the Court's practice to allow flexibility, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. It has resisted suggestions to establish rigid evidentiary rules and has adhered to the principle of free assessment of all evidence. The Court has also acknowledged that its task is to rule on State responsibility under international law and not on guilt under criminal law. In its approach to questions of evidence and proof, it will have regard to its task under Article 19 of the Convention to " ensure the observance of the engagements undertaken by the High Contracting Parties", but without losing sight of the fact that it is a serious matter for a Contracting State to be found to be in breach of a fundamental right...".

[15] To this should be added the observation of the European Court in Farbtuhs v Latvia at paragraph 54 that the court "must rely on the whole of the evidence produced or, if need be, which it obtains on its own initiative...". In that connection Mr O'Neill referred to rule 42 of the Rules of Court of the European Court, according to which the Chamber " may, at the request of a party or a third party, or of its own motion, obtain any evidence which it considers capable of providing clarification of the facts of the case..."(paragraph 1), and " The Chamber may, at any time during the proceedings, depute one or more of its members or of other judges of the Court to conduct an inquiry, carry out an investigation on the spot or take evidence by some other means..."(paragraph 2).

[16] Two points may be noted in regard to the foregoing. First, in its approach to evidence the court takes into account the conduct of the parties when evidence is being obtained, and has regard to "evidentiary difficulties". In Celik and Imret v Turkey (application no.44093/98) 26 October 2004 the court reaffirmed in paragraph 39 that where a victim had sustained injuries while in custody it was incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if they were backed up by medical reports. The court went on to state in paragraph 40:

"Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v Turkey (application no.21986/93) § 100".

In Nachova and Others v Bulgaria the court stated at paragraph 169 that it considered that in cases where the authorities had not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and had disregarded evidence of possible discrimination, it might, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government, as it had previously done in situations involving evidential difficulties.

[17] Secondly, the court has made it clear that it is not concerned with determining guilt. The European Court evidently derived the formula "proof beyond reasonable doubt" from it use in common law jurisdictions. However, the European Court did not also adopt the presumption of innocence with which that standard of proof is associated in these jurisdictions, or for that matter any rule against the inference of guilt from silence. In a number of decisions it has been pointed out that its use of "beyond reasonable doubt" should not be confused with the criminal standard of proof. In Ribitsch v Austria (1996) 21 EHRR 573 the Commission stated at paragraph 111:

"The Commission further considers that, in contrast with criminal proceedings, proceedings instituted under the European Convention on Human Rights are not aimed at punishing the authors of violations, but at protecting the victims and providing redress for damage caused by the acts of the State responsible (see also Inter-American Court of Human Rights, Velasquez Rodriguez case, judgment of 29 July 1988, para. 134 et seq., annual report of the Inter-American Court of Human Rights 1988, Washington 1988, pp. 35 and 61)".

While not referring to this particular passage, the European Court made no adverse comment on it.

In Nachova and Others v Bulgaria the court stated at paragraph 166:

"The Court has held on many occasions that the standard of proof it applies is that of ' proof beyond reasonable doubt', but it has made it clear that that standard should not be interpreted as requiring such a high degree of probability as in criminal trials".

[18] We should add that the use by the European Court of the formula "proof beyond reasonable doubt" has not been without its critics (see the dissenting opinions in Labita v Italy (Application no. 26772/95) 6 April 2000 and in Sevtap Veznedaroglu v Turkey (application no. 32357/96) 18 October 2000). However, we proceed on the basis that there is a settled practice as to its use.

[19] It is a matter for an international tribunal such as the European Court to work out for itself, as part of its own internal law, the standard which it should apply as part of its assessment of evidence before it. We do not regard the use of such a standard as part of the jurisprudence to which courts in the United Kingdom are bound to have regard. In any event it is clear that the formula "proof beyond reasonable doubt", as used by the European Court, and the approach to evidence in connection with which it is used, are very different from the rules of Scottish evidence and procedure. In the case law which we have examined above, we note that, where the European Court relies on its own assessment of evidence, it takes a flexible approach. It may take into account evidence which has been obtained at its own instance. It may rely on presumptions of fact, and hold that the evidential burden of proof has been reversed. It is not concerned with the guilt of individuals, but with the protection of victims and their redress. While recognising that it is a serious matter for a State to be found in breach of a fundamental right, the court does not apply anything equivalent to a presumption of innocence. Lastly, and by no means least, the court has made it clear that its use of "proof beyond reasonable doubt" should not be interpreted as requiring the "degree of probability" as in criminal trials.

[20] These considerations lead us to the view that, when taken in its context, the formula "proof beyond reasonable doubt" as used by the European Court has a wholly different significance from its use in criminal trials in Scotland. It is well settled in this jurisdiction that in civil cases the standard of proof is on a balance of probabilities, and that any suggestion that there is some standard of proof intermediate between proof on a balance of probabilities and beyond reasonable doubt has been expressly rejected (see Mullan v Anderson 1993 S.L.T. 835, per Lord Morison at page 842 and Lord Penrose at page 851). An allegation of a breach by a public authority of a Convention right is, of course, a serious matter, but it would not be in accordance with Scottish practice in a civil case to depart from the standard of proof on a balance of probabilities. We should add that any attempt to determine just how far "proof beyond reasonable doubt" as used by the European Court differs from the significance of that expression in a criminal trial in Scotland appears to us to be fraught with difficulty. In any event, to undertake such an exercise would miss the point and fail to recognise the difference between the approaches to evidence. We note that in Re E [2004] NIQB 35 Sir Brian Kerr, Lord Chief Justice of Northern Ireland, commented at paragraph 42:

"It is true that the ECHR has devised a test for art 3 violations that might be considered stringent. One must recognise, however, that it has repeatedly been emphasised that any assessment of offending conduct must be directly related to the particular facts of an individual case and that contemporary views as to what may be said to constitute inhuman or degrading treatment must be dictated by current standards".

[21] In these circumstances we will find and declare, as was submitted by Mr O'Neill, that in civil proceedings in Scotland in which a finding is sought from the court that there has been an act or a failure to act by a public authority which is incompatible with the requirements of Article 3 of the European Convention on Human Rights, the appropriate standard of proof is the ordinary standard of proof applicable to civil cases in Scotland, namely, proof on a balance of probabilities.