Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2016] SC EDIN 67

A116/14

JUDGMENT OF SHERIFF N A ROSS

 

In the cause

 

JAMES McDOWALL

 

Pursuer

 

Against

 

G4S CARE AND JUSTICE SERVICES (UK) LIMITED

 

Defender

 

Pursuer:   Fordyce

Defender:   Duthie

 

Edinburgh, 6 October 2016: the Sheriff, having resumed consideration of the cause, finds the following facts to be admitted or proved:

 [1]       During 2013 the pursuer was a prisoner in a secure prison at Addiewell. He was serving a 9-year sentence for attempted murder. He had a previous conviction for assault to severe injury and permanent disfigurement. He was identified by the prison authorities as having a history of violence, drug and alcohol misuse and mental health issues, including self-harm.

[2]        The defender provides prison escort services and other services in terms of a contract with the Scottish Ministers dated 28 March 2011. Prison escort services are non-core services under that contract, which regulates the procedures and methods by which prisoners within Scottish prisons are transferred to and from outside venues.  The escort staff provided by the defender from time to time are their employees and subject to their direction and control.

[3]        A standard operating procedure is followed by the defender in relation to prisoner transfer. This procedure is agreed between the defender and the Scottish Prison Service. In terms of that procedure, a prison escort record (‘PER’) is prepared by the prison operator. The PER contains information relating to the individual prisoner who is to be transferred, including ‘Risk Information’. The PER is signed on behalf of the prison operator and handed to the defender’s prisoner custody officer (‘PCO’) upon arrival to collect the prisoner. The PER contains a ‘Record of Events’ section on which the PCOs record times, locations and other information during the transfer.

[4]        On three occasions during 2013 the pursuer required to attend hospital for examination in relation to a medical condition. On 13 March 2013 he attended St John’s Hospital, Livingston. On 27 July 2013 he attended the Western General Hospital, Edinburgh. On 21 August 2013 he attended again at the Western General Hospital. On each of these visits he required to be transferred to and from Addiewell prison by the defender’s employees in secure vehicles.

[5]        These hospitals are premises to which the public have open access for medical services. They are not secure areas and there is no dedicated provision for the secure custody of prisoners. In attending these premises, the pursuer required to use the same entrances, waiting areas, access corridors and medical facilities as members of the public, and received medical attention in the same areas and same manner as members of the public. The prisoner came into close proximity to members of the public and medical staff when approaching the buildings and throughout his visits. The defender has carried out generic risk assessments in relation to, amongst other public premises, these two hospitals, and these show that the premises are not secured against the risk of escape or damage to persons or property.

[6]        In terms of the standard operating procedure, a prisoner being transferred from secure prison accommodation to an insecure public area requires to be escorted and appropriately restrained against the risks inherent in such a procedure. The generic risks in relation to any such prisoner include escape, handling of contraband goods, damage to property, harm to passers-by and other members of the public, harm to the defender’s employees and harm to himself or herself. The risk of escape carries the risk of harm caused in the attempt, both to escorting staff and to the prisoner in being forcibly restrained.

[7]        The prison authorities carry out risk assessments in relation to prisoners while inside secure prison accommodation. During 2013 the pursuer was assessed as by the prison authorities as being in a low risk category. This assessment is particular to supervision levels within secure prison premises, and is not and does not bear to be an accurate assessment of the risk that the prisoner may pose when on temporary release into insecure public premises.

[8]        The most commonly used method of restraining prisoners who are being transferred from secure premises to insecure public premises is by the use of two sets of handcuffs, known as double cuffing. This involves the prisoner’s wrists being cuffed together, and a second set of handcuffs between one of the prisoner’s wrists and the wrist of the escorting PCO. When double cuffing is used, an escort of two PCOs is the minimum appropriate escort. Double cuffing can include the replacement of the cuff to the PCO with an escort chain, a three-metre long chain, which allows distance between the PCO and the prisoner. The purpose of the escort chain is to allow movement onto scanners and beds, and to allow a degree of confidentiality between doctor and prisoner. It is never used when walking in public areas. The pursuer was never led by a chain. Double cuffing a prisoner is visible to passers-by, but can be done discreetly. In any event, the most visible part of the escort is the number of PCOs accompanying the prisoner.

[9]        An alternative method of restraint is single cuffing, using only one set of handcuffs between PCO and prisoner. When single cuffing is used, this provides only limited restraint to the prisoner. Single cuffing offers only limited protection against the general risks of escape or harm, and requires the use of greater numbers of PCOs to reduce, but not remove, the increased risk thereby created. Single cuffing leads to a more visible and obvious escort party, as it requires a greater number of PCOs to escort the prisoner. It is not generally an appropriate method for use for prisoners taken from secure premises to insecure public areas, as it is less secure and more visually obtrusive.

[10]      Alternative methods of escorting a prisoner would range from trust, without restraint, to multiple escorts. Neither of these methods was appropriate in the circumstances. The use of greater numbers of PCOs does not adequately compensate for the increased risks created by single cuffing or unrestricted movement in prisoners under escort.

[11]      For the first visit on 13 March 2013, the defender’s PCOs collected the pursuer from Addiewell prison. They received the PER which noted risk factors including medical condition, psychiatric condition, violence, suicide/self-harm and drugs and alcohol. These are significant risk factors. Double cuffing and two escorts was the most, and minimum, appropriate precaution for the PCOs to apply during his presence on insecure public premises. They escorted him to St John’s Hospital, applying double handcuffs upon arrival.

[12]      The pursuer and his escorts walked a short distance to the entrance and into the waiting area. They passed several members of the public on the approach to, and within, the hospital premises. Some of these people noticed and commented on the pursuer’s handcuffs and escort. He felt awkward and self-conscious, but this could not reasonably have been avoided by the defender’s PCOs. He received appropriate medical examination, and then was escorted out. The time from leaving the vehicle to returning there was approximately 15.10 hours to 15.35 hours, or 25 minutes.

[13]      For the second visit on 27 July 2013, the defender’s PCOs collected the pursuer from Addiewell prison. They received the PER on which the risk factors assessment had not been completed. It did not note any risk factors, but nor was the ‘no known risk’ assessment made. In these circumstances the PCOs ought properly to, and did, assess the pursuer as posing an unknown risk of violence or harm. In those circumstances, double cuffing and two escorts was the most, and minimum, appropriate precaution for the PCOs to apply. They escorted him to the Western General Hospital, and double handcuffs were applied on arrival.

[14]      At the Western General Hospital, the pursuer and his escorts walked to the entrance and into the waiting area. They passed several members of the public on the approach to, and within, the hospital premises. Some of these people noticed and commented on the pursuer’s handcuffs and escort. He felt awkward and self-conscious, but this could not reasonably have been avoided by the defender’s PCOs. He received appropriate medical examination, and then was escorted out. The time from leaving the vehicle to returning there was from approximately 12.45 hours to 13.05 hours, or 20 minutes.

[15]      For the third visit on 21 August 2013, the defender’s PCOs collected the pursuer from Addiewell prison. They received the PER which noted risk factors including medical condition, violence and drugs and alcohol issues. These are significant risk factors. Double cuffing and two escorts was the most, and minimum, appropriate precaution for the PCOs to apply. They escorted him to the Western General Hospital, and applied double handcuffs on arrival.

[16]      During his hospital visit on 21 August 2013, the pursuer and his escorts passed several members of the public on the approach to, and within, the hospital premises. Some of these people noticed and commented on the pursuer’s handcuffs. He felt awkward and self-conscious, but this could not reasonably have been avoided by the defender’s PCOs. He received appropriate medical examination, and then was escorted out.  The defender’s employees had previously identified that the defender may require to have his cuffs removed while at hospital, as in fact occurred. They therefore provided three PCOs on that visit to attempt to offset the increased risk thereby caused. The time from leaving the vehicle to returning there was from approximately 11.59 hours to 12.42 hours, or 43 minutes.  Over these three hospital visits, the total time spent double cuffed in public was approximately 40 minutes, and the whole visiting time approximately 1 hour and 28 minutes.

[17]      The defender’s employees did not carry out a written risk assessment on each transfer, but they did make an appropriate assessment of the overall risks in relation to the pursuer on each individual transfer. They were aware, from generic site assessments, of the insecure nature of the hospital premises. They informed themselves, on the first and third visits, of the prison authorities’ identification of individual risk factors (noted in the PER) relating to the pursuer. On the second visit, they appropriately identified from the PER that this exercise had not been carried out. They were aware, from generic risk assessments, of the risks arising in taking a prisoner from secure premises to insecure public premises. They carried out on each such transfer an ongoing dynamic risk assessment in relation to the pursuer and his surroundings. They were accordingly able on each occasion to assess the particular risk posed by the pursuer in the individual context. The pursuer was at all material times able-bodied, and not materially restricted by any medical condition. On each occasion they took the appropriate precautions against the risk factors. Had they carried out a written assessment, no different or less restrictive procedures or methods would have been indicated or justified. The appropriate measure of restraint for the pursuer on each visit was the method used, namely double cuffing and escort by PCOs.

[18]      On none of these occasions did the pursuer complain about his treatment or any feelings he might have. He knew at the time and accepted as appropriate that he would be restrained to some extent involving handcuffs while within the hospitals. He was not cuffed to any machine or other object. He was treated at all times with appropriate consideration and tact by the escorting PCOs. He was not led on an escort chain. Although his status as a restrained prisoner was evident to passers-by, no other method of restraint would have lessened his visibility to the public or would have afforded him any greater privacy. Had he been single cuffed, his escort would have required at least three and possibly as many as five PCOs, which would have significantly increased the pursuer’s visibility and remarkability to members of the public.

[19]      Each of these visits was conducted with the minimum appropriate level of interference with the pursuer’s liberty and dignity. It was important to ensure the safety of the public and others and safety and security of the pursuer. The use of double cuffing was rationally connected to this aim. No other means of restraint were reasonably required or justified. No less intrusive measure could reasonably have been used without compromising safety and security. It was not justified that the pursuer remain unrestrained or unescorted. On each occasion the level of restraint was appropriate as a balance between the legitimate aims of restraining the pursuer and ensuring the safety of the public and others and the pursuer’s personal interests.

[20]      The pursuer’s treatment was proportionate, justified and requires neither redress nor an award of damages. It was not inhuman, degrading or severe. He has suffered no prejudice or loss directly attributable to the said events. His subjective feelings were in any event of a relatively minor and brief nature, and were not severe. Any prejudice or loss suffered by him is directly attributable to his status as a secure prisoner, his personal conduct and his history of criminality, for which he is responsible, and not to the said hospital visits.

And finds in fact and law as follows:

[1]        The pursuer’s said hospital visits were escorted by PCOs who were employees of the defender for whose actings the defender is responsible. The defender is a public authority within the meaning of section 6(3)(b) of the Human Rights Act 1998.

[2]        The treatment of the pursuer during these events did not breach his rights under Article 3 of the European Convention of Human Rights. He was treated in a manner that was not inhumane, degrading or severe. He was not treated unlawfully.

[3]        The treatment of the pursuer during these events did not breach his rights under Article 8 of the European Convention of Human Rights. He was treated in a manner which was appropriate and proportionate, was in accordance with the law and was necessary for legitimate societal aims. He was not treated unlawfully.

[4]        In any event, neither an award of damages nor any other judicial recognition is necessary to afford just satisfaction to the pursuer.

THEREFORE repels the pursuer’s pleas-in-law, sustains the second, third, fourth and fifth pleas-in-law for the defender, and assoilzies the defender from the crave of the writ; fixes a hearing on a date to be afterwards identified, which can be discharged of consent of the parties in the event they are able to agree any award of expenses.

 

Note:

[1]        The pursuer was sentenced on 15 May 2009 to 9 years imprisonment for attempted murder. He was imprisoned at Addiewell Prison, a secure prison. During his sentence he required to attend hospital for medical reasons. This claim relates to three such outpatient visits, on 13 March 2013 to St John’s Hospital, Livingston and on 27 July and 21 August 2013 to Western General Hospital, Edinburgh. He was taken to and from hospital by the defender’s employees. From arrival to departure from the hospital in each case the visits took approximately 25 minutes, 20 minutes and 43 minutes respectively.

[2]        During the visits, as a serving secure prisoner, he required to be restrained against escape and as a precaution against a variety of possible risks. The pursuer accepts that a measure of restraint was appropriate. In particular, he accepts that single cuffing was to be expected. He was double cuffed for each of these visits. Double cuffing he claims to have been a breach of his rights under Articles 3 and 8 of the European Convention on Human Rights.

[3]        ‘Single cuffing’ is the practice of using a single pair of cuffs to bind one of the prisoner’s wrists to the wrist of an escorting officer. ‘Double cuffing’ is the practice of binding the prisoner’s wrists together with cuffs and then using a second pair of cuffs to bind one of his wrists to the wrist of his escort.

[4]        The pursuer seeks damages for these events. The case has previously been discussed at debate, and the decision was appealed. Following that appeal the present hearing on evidence was fixed. Ms Fordyce, advocate, appeared for the pursuer. Mr Duthie, advocate, appeared for the defender. I am obliged to them for their careful and thorough submissions.

 

The legal framework

[5]        The jurisprudence has already been judicially discussed in detail in this action, both in the original debate and at appeal. The decisions are lodged with the process. It is superfluous and unnecessary for me to repeat those discussions at length. Any differences between the parties as to the law were differences of emphasis and not of substance. What follows is a brief summary of jurisprudence, largely as helpfully summarised by counsel.

[6]        Article 3 of ECHR provides:-

“No-one shall be subject to torture or to inhumane or degrading treatment or punishment”.

 

[7]        The treatment complained of must be both degrading and must reach a ‘minimum level of severity’ before it can be considered in breach. Each case depends on its own facts. Motivation can be relevant, but it is not contended in this case that there was any motivation to degrade. It is necessary to consider and distinguish such feelings of fear, anguish and inferiority as would be expected to follow on imprisonment.

[8]        For a prisoner to be handcuffed in public does not automatically amount to degrading treatment sufficient to breach Article 3. It has been observed that:

‘hand-cuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage.’ (Mouisel v France (2004) 38 EHRR 34 at 47)

 

[9]        Article 8 of ECHR provides:-

‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for protection of the rights and freedoms of others.’

 

[10]      Article 8 must be considered separately from Article 3, and one may be breached where the other is not. Interference with Article 8 rights must be in accordance with the law, must pursue a legitimate aim and be necessary in a democratic society. Any interference must be proportionate to the legitimate aim pursued. There is, however, no ‘minimum level of severity’ to be met. There is a generally-accepted four-part test (Bank Mellat v HM Treasury (No.2) [2013 UKSC 39, at 74) for proportionality, namely (i) whether the objective is sufficiently important to justify the limitation of a protected right; (ii) whether the measure is rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (iv) 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 that the measure will contribute to its achievement, the former outweighs the latter.

[11]      It was previously argued in this case, but no longer following the appeal judgement, that the absence of an individual risk assessment (an admitted fact) was necessarily fatal to the defence. Rather, the question of whether there have been breaches of ECHR depends on the individual circumstances of each case. It is necessary to consider the evidence to establish, first, whether either of the Articles has been breached and, second, in respect of Article 3 (but not Article 8) whether any violation has attained a minimum level of severity.

[12]      The parties highlight other various further observations from the case law. Article 3 may be breached in relation to very short periods. The use of handcuffs will not infringe Article 3 if they are to guard against an adequately founded risk of escape or harm. A risk assessment based on defective prison records does not infringe where there was no reason to believe they were defective. The focus is not on the decision-making process, but rather the result, namely whether it has resulted in a violation of the ECHR rights, even where the process is flawed. The ‘minimum severity’ test to be met before Article 3 is engaged is a high one.

[13]      Against this background, the pursuer led only his own evidence and the defender led five witnesses. There is a joint minute agreeing some evidence.

 

The pursuer’s evidence

[14]      The pursuer is a 54 year-old man. He presented as somewhat hesitant and slow in his evidence, which may be explained by medication. In 2013 he was serving a 9-year sentence for attempted murder. He has a previous conviction for assault to severe injury and permanent disfigurement, some 10 or 11 years before that conviction.

[15]      He was imprisoned in HMP Addiewell. On 13 March 2013 he required to attend hospital. He was escorted by two prisoner custody officers (‘PCOs’) in the defender’s vehicle. They arrived at St John’s Hospital and alighted in the car park. He was double cuffed to a PCO. They walked 70 to 100 yards to the hospital building. As they did so, they passed a bus stop full of at least a dozen people, and passed ‘quite a lot’ of other people.

[16]      They waited in the public waiting area, which had ‘a few’ people in it. He estimated a half-dozen people were there, and they waited for ten minutes. He felt ‘uncomfortable’. There were families and ‘a couple of kids’. He thought they could see the cuffs. They kept staring at him and ‘I just felt affronted’. When asked to be more specific, he said that the children were looking at him, and their mum and dad were wondering what he was in for, and why he was cuffed.

[17]      There were no windows and a door, and therefore no need for cuffs. (I record that he did not distinguish, for most of his evidence, between single cuffing and double cuffing, and it appeared at one stage that he was asserting that no cuffs should have been applied, a position which he later appeared to moderate to single cuffing only. His evidence was somewhat vague and generalised throughout). He said ‘I felt violated, in a way’, but did not elaborate. He said ‘I was three-and-a-half years into my sentence, so the thought never entered my head to run away’ and that cuffing ‘just didn’t feel right to me’. He complained that the defender’s officers spoke to him ‘as if I was a nothing, a nobody’. He thought the cuffs (and again I understood him to refer to both sets of cuffs) could quite easily have been taken off. He didn’t ask for this as ‘I was polite’.

[18]      He went in for an x-ray to his head. The medical procedures were not discussed in any detail during his evidence. The PCO required to stand away from the machine. The cuff to the PCO’s wrist was removed and replaced with a ‘three-metre’ chain from the pursuer’s wrist to the PCO’s wrist. The other PCO stood by the door. There were no windows. The nurses asked for the cuffs to be removed, but the PCO refused.

[19]      Being x-rayed was an uncomfortable experience. He complained the cuffs were tight.

[20]      After that he was conveyed back to the vehicle, with the original double cuffs in place. The experience was similar to that on the way in.

[21]      The next hospital visit was on 27 July 2013. He thought it was to the Western General Hospital. He required a fundoscopy. They drove around to find the correct department. This time he had to walk 50 yards to the entrance, double cuffed. They got lost and walked down several corridors. There were quite a lot of people there. He felt ‘the same as for last time’. There were six to eight people in the waiting area, and he waited for 15 minutes. He was taken to a room without windows and with a single door. He was there with two PCOs and a neurologist.  He felt ‘apprehensive’, but this was about what the neurologist might be thinking. On exit, they walked past the waiting area, with five or six people there, back to the vehicle. The cuffs were visible, and he felt just the same way as he had before.

[22]      On 23 August 2013 he went again to hospital for a CT scan. It was ‘a similar scenario to the first time’. Again, he was double cuffed, and accompanied from the vehicle to the waiting area, where there were maybe six or seven people. He just felt there were a lot of people staring. He was uncomfortable. He is ‘bothered with nerves and depression’. He just tried to keep his head down.

[23]      During his examination he was uncomfortable, but I understood this to refer to the examination itself and not the cuffing. The doctor asked if the cuffs could be removed, and this was refused. The chain was applied instead of the cuff to the PCO’s wrist. There were three PCOs on that occasion, and the neurologist. On the way out, the same route was taken. He felt he was ‘nobody, like a piece of dirt’. People kept staring and talking about him because he was in cuffs.

[24]      The PCOs did not consult him about cuffs, but just applied them. He expected to be cuffed from ‘one officer to myself’. He though single cuffing was standard procedure. He did not complain, as it was a long day and he just wanted to return to his cell. He suffered from migraines.

[25]      He never tried to escape during these visits. He agreed that he had been found in possession of drugs in prison, but this was due to a previous prisoner leaving him some pens, inside which were drugs. He did not take them, and was found not guilty of possession.  He described the idea that he had a history of violence as a ‘load of rubbish’ (notwithstanding his convictions, which were not challenged). He was not a drug smuggler and not a drug user. He was a ‘hub pass’, a trusted prisoner within the prison, and the governor had praised his work.

[26]      In cross-examination, he admitted to the conviction for attempted murder, a conviction for assault to severe injury and permanent disfigurement and ‘a few’ other theft offences. He confirmed that he had never taken drugs in prison, but was confronted with his prison records (6/3 of process) which described his as a ‘drug user’. He described this as referring to his medication for depression.

[27]      He was shown what bore to be contemporary records of the three visits, compiled by the relevant PCOs. He denied, contrary to one entry, that handcuffs were removed at any time, and described this entry as ‘obviously lying’. He did not explain what the purpose of such a lie might be.

[28]      Further on in his prison records, under ‘security and intelligence information’ he denied an entry relating to a ‘violent fight’, stating that he administered one kick only. Again, he was found not guilty.

[29]      He did agree that cannabis had been passed to him during a prison visit, and that he had eaten it, but it was ‘next to nothing’. It had been concealed under a hamburger. His visitor ‘realised that he had it’ and passed it across. He denied another entry in August 2009 that someone sent 0.1 grams of heroin. He did not accept entries relating to 5 November 2008 or 18 November 2008, saying ‘I don’t know where they get this from’.  He thought this must relate to a prisoner with a similar name, as he was not serving a sentence during those dates. Out of fairness to him, I will disregard the alleged events of November 2008.

[30]      He did expect to be single cuffed, but not with his hands cuffed together also. He did not expect to be ‘put on a chain and led around like a dog’ (this was a puzzling remark, as he had not given this evidence in chief). He accepted that the PCOs had no reason to have a grudge against him. He suffered from migraines, but there was no other impediment to his movement.

[31]      On questioning about the cuffing, he stated that he had been chained on a three-metre escort chain at all times, not just during treatment. He said he had always been chained (this was a significant development of his earlier evidence, and appeared to be an embellishment of his earlier evidence).

[32]      He agreed that single cuffing and double cuffing would be equally humiliating, but ‘you still feel humiliated’. He had, however, expected single cuffing. He then went on to say that he would not have felt as humiliated as he felt with a double cuff and led around like a dog. This evidence seemed to indicate that he thought only non-cuffing was appropriate. He accepted, in effect, that double cuffing did not materially increase the prejudice caused by single cuffing. His position appeared to become increasingly illogical, contradictory and self-serving.

[33]      Asked about an alternative of having four or five escorts, rather than cuffing, he replied that he’d rather have two escorts. He would ‘have to see how he felt’ about more than that. He did not address the question.

[34]      He was challenged that these three short periods of cuffing in public had no effect. His reply was ‘You don’t know the way I live’. He lives in a bedroom, and has done for the last three years. ‘That’s the effect it had on you’ and ‘you should see me day in and day out, the way I live my life’. I have no difficulty accepting that the pursuer feels that his life is poor quality. None of this evidence, however, pointed to these experiences as having been the sole or principal cause, or even a contributing factor.

[35]      He denied ever stating that he had been chained to a scanner. He said he may have said that there ‘was every chance’ that he’d been chained to a scanner at St John’s. He then clarified that he meant the chain might have been tangled around the machine, but attached to a PCO.

[36]      The pursuer’s evidence was unsupported by any other source, or any documents, save in relation to the bare facts of the visits. He contradicted the contemporary record that his cuffs were removed on the third visit. His evidence was vague and unspecific throughout. His case, and on subsequent reading, his pleadings, are vague on whether single cuffing was appropriate, and he seemed to switch between accepting that single cuffing was appropriate to complaining about any restraint at all. He was intent on complaining, but he apparently had not thought about the specifics of his complaint.

[37]      I cannot accept that his unsupported evidence is either sufficiently credible or reliable to found a basis for his claim. It is in any event insufficient to surmount the logical hurdles. He failed to say why single cuffing would have stopped people staring at him. He gave, and led, no evidence about how visible the double cuffing was, or how single cuffing would have improved matters (bearing in mind the need for PCO escort in either situation). He entirely failed to address his own status as a prisoner with a marked record for violence, and appeared to deny that any restraint was appropriate. His evidence was thin, flexible, self-serving and vague, and showed no insight into what a balanced outcome might be. His evidence about causation was almost nil, and no credible link was made about his present situation, namely living in a single room and not relishing his quality of life, and these three hospital visits. An alternative explanation, namely his criminal behaviour and career, and historic drug, alcohol and psychological issues, went entirely unrecognised by him. His evidence was so deficient that it could not found any credible case, in my assessment.

[38]      It is appropriate, nonetheless, that the defender’s position be examined, as the case involves criticism of the system of prisoner escort.

 

The defender’s evidence

[39]      William Galloway is head of operations at G4S, and previously held other posts with them. He spoke to the G4S contract (6/13 of process) under which the defender provides prison escort and other services. Escort to hospital forms part of non-core activities under that contract, and is regulated by section D10 (prescribing the duty to ‘remain with and maintain secure custody during the escort and treatment and return’) and section E1.3 (‘Use of mechanical restraints’). The latter provides:

‘E1.3.1 In determining the appropriate use of mechanical restraint (such as handcuffs and escort chains) the Service Provider shall utilise security procedures commensurate to the assessed or identified risk(s) associated with each Prisoner, the level of threat, and the location of the escort. The use of mechanical restraints shall not be used (sic) at a higher level than necessary to reasonably mitigate against assessed or identified risks, or to maintain appropriate security.

 

E1.3.2 The Service Provider’s operational procedures shall recognise that the use of mechanical restraints is not required or mandatory in specific circumstances or some types of Prisoner, namely: The escorting of low supervision Prisoners located in an open prison or those attending community placements…’

 

[40]      Accordingly the procedures did distinguish amongst categories of prisoner. A PER (prisoner escort record) is prepared each time there is a transfer, by the prison operator. It records events during the visit. Events such as removal of cuffs would be recorded on it. There would be no reason to give wrong information on this.

[41]      There are three record sheets for the three visits, at 6/4, 6/5 and 6/6 of process, by which the defender tasks its employees to attend. At 6/7 to 6/9 are corresponding PERs for those visits, handed over by Sodexho, the prison operator. ‘Risk’ for the pursuer is flagged up on the first (6/7) as ‘medical condition’, ‘psychiatric condition’, ‘violence’, ‘drugs/alcohol issues’ and ‘suicide/self-harm’. On the second (6/8) no box is ticked, not even the ‘no risk’ box. On the third (6/9) only three are ticked, namely ‘medical condition’, ‘violence’ and ‘drugs alcohol issues’. Attached to the last is a ‘Record of Events’ for the last visit of 31 August 2013, showing that ‘permission to take off cuffs given by James’. This shows that permission was asked from Operations Control Centre, and given, to remove cuffs. Mr Jones is a controller there.

[42]      Mr Galloway accepted that the PERs contained differing information. He described this as a challenge for the defender. It was necessary, in order to minimise risk, to cuff a prisoner. If no information appeared at all, it would be necessary to apply cuffs. They had to take a cautious approach. There is always a risk, and if no boxes were ticked they had to assume a high risk. They could not access PERs for previous visits.

[43]      The defender provides instruction for its employees. For general medical appointments the instructions (6/12) include that ‘a risk assessment will be carried out on the Prisoner prior to the escort…’. In addition, the escort must carry out a dynamic risk assessment themselves and make any relevant changes. Clause 9.18 provides:

‘Unless a risk assessment deems otherwise the [PCO] will apply/change over a single handcuff in a secure area and double handcuffs in an insecure area…’

 

[44]      Clause 9.35 deals with arrival at the medical appointment location and contains an identical provision. Clause 9.39 provides:

‘Where medical staff request that one or both the handcuffs are removed for medical reasons…The handcuff between the [PCO] and Prisoner can be replaced by the escort chain if required (the Prisoner will still remain double cuffed)…prior to the complete removal of restraints staff must seek the authority of the [defender]…This should be recorded on the ROE as a significant event.’

 

[45]      In the present case, a risk assessment of the pursuer was carried out. The pursuer was imprisoned in secure premises, which would normally require mechanical restraints to be applied were he to be removed from there. This would be a generic risk assessment. There is also a dynamic risk assessment carried out by the PCO. The booking form would also indicate risk. There would be a booking form, a tasking sheet, a PER and a record of events, all relating to a single visit. In the present case, the booking sheet or ‘External Services Escort Booking Form’ for the July visit (6/15) shows against the pursuer’s name ‘history of psychiatric illness; heart condition’, and ‘low risk’. The booking form for the August visit shows the same information.

[46]      Accordingly, the officers would arrive with the tasking sheet, which would reflect information on the booking form. On arrival, they would be handed a PER, which would further record individual risk information. If, for some reason, nothing was noted on the PER, it was necessary to treat the prisoner as a risk.

[47]      There were also risk assessments for the hospitals themselves. The risk assessment for the Western General, Edinburgh is lodged (6/10) as is the risk assessment for St John’s (6/11). The PCOs carry out constant dynamic risk assessment from when the journey starts. Assessed risk would be lowered where there were, for example, mobility issues. In the present case, none of the PERs would justify a downwards risk assessment for the pursuer.

[48]      The possible risks are varied, and include escape of the prisoner, safety of PCO and medical staff, violence towards others, damage to property, passing of illicit articles and the prisoner’s own safety. Single cuffing would always be cuffing to a PCO.

[49]      It is possible to remove cuffs, but the risks would have to be compensated by other means, such as an increased escort. This would not address the risk factors, as it would leave the prisoner’s arms free. It would be more intrusive to have an increased escort of four or five officers. There was never any intent to disgrace or humiliate a prisoner.

[50]      He was referred to the Scottish Prison Service risk assessment (6/3 of process). For the pursuer, this states: ‘observation 15 minutes, suicide basic supervision, locate ground floor, closed visits, drug user, Rule 94 (unruly prisoner), person with asthma, history of psychiatric illness, person with a heart condition, offence assault to severe injury and permanent disfigurement (x 3)’ He confirmed that a prisoner with this history would be double cuffed at all times, without doubt. ‘Closed visits’ indicated a suspicion of drugs possession.

[51]      He was referred also to the conviction for attempted murder (6/3), and sentence of 9 years imprisonment to date from 23 June 2008, and also the record of prison-based events attached. These showed a tendency for violence, including within prison in 2010. All of this information tended to support the risk assessment that double cuffs were necessary. The fact he was a ‘pass man’ with privileges within the prison would not affect such an assessment.

[52]      In cross-examination, he accepted that the defender did not assess the pursuer directly prior to collection, but rather through the documents provided. There were discrepancies amongst the PERs provided in this case. The assessments were of likely precautions needed, rather than of the character of the prisoner. It was a default position that a prisoner from closed conditions would be double cuffed on escort to insecure areas, unless there was reason to downgrade the assessed risk. Where, due to administrative error, no risk assessment was marked on the PER, it would be treated cautiously and the default policy, of double cuffing, would be applied. He pointed out that the PCOs would carry out continuous dynamic risk assessment during the movement of the prisoner.

[53]      Michael Piper is a retired former prison officer and operations unit manager. He was formerly employed by the defender. He was engaged in prisoner escort duties. He spoke to the same material shown to Mr Galloway. They would mostly receive material such as the prison risk assessment, but sometimes they did not get it. The default position for prisoners being taken to insecure areas is double cuffing. The PER would be an initial risk assessment. In the present case, having regard to the prison risk assessment, ‘without doubt’ the appropriate response was double cuffing the pursuer.

[54]      The PER for the second visit was a ‘problem’, as it contained no risk assessment at all. His practice would be to err on the side of safety and caution. The only barrier to escape is an officer, and cuffs serve as a replacement for prison walls. The first and third visit PERs posed no problem, and clearly indicated that double cuffing was the correct response – for him it was very straightforward.

[55]      Risk might be downgraded as a matter of assessment of the individual, and where the individual had demonstrated a fairly decent history of compliance within the prison. This information was not routinely available in the past, but is now, following a review of procedure. In the present case there was nothing indicating that this should have been done. In a risk assessment, violence was less important than a drugs history, which told you that the prisoner was no respecter of the rules. 

[56]      Single cuffing increased risk as it left one arm free in an open area. Double cuffing can be by a chain, but it is to allow privacy between doctor and patient. PCOs never moved prisoners around with a chain. The chain was for the prisoner’s benefit. He’d be ‘appalled’ if a prisoner was led around on a chain. A PCO required to ask permission to change cuffs in 2013, but following review could now make that assessment himself.

[57]      Double cuffing he described as ‘might be more obvious, but it doesn’t have to be’. PCOs try very hard to be discreet in public. There was no intent to humiliate – that would be against everything prisons stand for. The addition of more PCOs would be more obvious and cause more alarm to the public. In the present case, with a history of violence and of drugs, double cuffing was required. It was important to keep such a prisoner’s hands where they could be seen. A ‘low risk’ assessment was only for inside prison. There would be four levels of restraint – trust, single cuff, double cuff and multiple escorts.

[58]      He spoke to the site assessments for hospitals. These were generic, and not revised for each prisoner. Risk assessments for prisoners, though, were dynamic and flexible.

[59]      The defender led the evidence of Eric Baskind, chairman and director of the British Self Defence Governing Body, a consultant in the use of force risk and martial arts, and a senior lecturer in law at Liverpool St John’s University. He compiled the report lodged at 6/16 of process and confirmed its content.

[60]      Mr Baskind has carried out a careful review of all the circumstances of the present case, and comments on the appropriateness of the restraint methods used on the pursuer. He concludes that the restraint was appropriate in the circumstances. I will not repeat his report in detail but he concludes that the risks associated with escorting the pursuer could only properly be controlled by the process of double cuffing. He states that, on the basis of knowledge acquired from a long career in security-related professional organisations, he is confident that the ‘vast majority’ of his peers would agree. His is a long and comprehensive curriculum vitae and is set out in the report.

[61]      He makes criticism of the PERs containing inconsistent information, but agrees that a risk assessment could only be made on a cautious basis as a result. Double cuffing is the default position when escorting a prisoner from a secure prison to an insecure area, as the safest and most appropriate method.

[62]      He examines the personal characteristics of the pursuer. He describes as ‘hugely significant’ the information as to his convictions, history of violence and drug smuggling and use, psychiatric illness and heart condition with asthma. Double cuffing is the appropriate response because, first, the history of violence and drug smuggling would make unrestrained transport inappropriate; and second, the medical history, namely of mental illness, heart condition and asthma, would increase the risk of physical restraint (as opposed to mechanical restraint such as handcuffs). Therefore a strategy to avoid the need to physically restrain the pursuer should be utilised.

[63]      Mechanical restraints have considerable advantages over physical restraint (in other words, restraint by escorts following an unforeseen incident). They can be applied within a secure area, which is far safer than restraining an un-cuffed prisoner in an insecure area. Handcuffing during an incident is difficult and risky. The application of cuffs might prevent a subsequent event. Cuffing can help to prevent assault by limiting reach and dexterity. It lessens the likelihood of escape by limiting ability to run, open doors and navigate. Cuffing also complies with manual handling regulations, with a view to the safety of staff. It reduces risk of injury and harm to staff and prisoners. Physical restraint is inherently risky to both staff and prisoner. A number of high-profile deaths have resulted from this process. It is relevant here that the pursuer has a heart condition. It needs a minimum of three staff to implement, on guidelines approved by the Scottish Prison Service, and all staff would require training.

[64]      Single cuffing does not, by itself, provide an adequate method of security for a prisoner, and can introduce extra risks, such as facilitating a choke hold or double-handed strike. It elevates risk of escape, or seizing by third parties. These risks would then require to be managed. One way is to add additional escort staff, by itself highly visible in public. Another is to double cuff.

[65]      Double cuffing means the prisoner has less control of his arms. This is much safer for escorting staff, and control is much better. It prevents escape or slipping the cuffs. It inhibits the passing or retrieving of contraband. It prevents property damage. It is safer for passers-by and medical staff, which is particularly relevant when in public waiting areas and the like. It is safer for the prisoner.

[66]      Mr Baskind was cross-examined in detail. He was referred to the site risk assessments, and accepted that these were generic, and poor documents for the purposes of assessing risk. This did not matter, in his view, as the PCOs would not be basing their own risk assessment of the prisoner on these. The nature of risk assessment was that it was all hypothesis. He had prepared his assessment with the pursuer in mind.

[67]      Risks are totally different outside prison, so internal assessments were of limited value. Risk assessment needed to be for a particular activity. It should be a dynamic, continual process.

[68]      He did not accept that flanking by an escort was an appropriate substitute for double cuffing. Flanking does not eliminate risk. Even with sufficient staff, the prisoner may still escape, or pick up an item. It created a potential need to restrain a prisoner, which increased risk.

[69]      In relation to the pursuer, Mr Baskind referred to the previous conviction and the current conviction as ‘immediately a very high risk marker’. This was underlined by the fact he was held in secure custody, that he had a mental health problem and drugs history. PERs were sometimes inconsistent, and had proved to be so in the present case. A PER was only part of a risk assessment. It also related only to internal prison assessment: it was a totally different set of circumstances once the prisoner was outside prison. Here, because the risk was uncertain, it was appropriate to take a cautious approach. The PER was a blunt assessment.

[70]      Having even a large number of escorts was not as safe as double cuffing. He would not use single cuffing, and would rule it out. It was possibly appropriate to single cuff in an insecure area, but the instances are few and far between. In single cuffing, ‘you’ve both lost one arm’, and a more powerful prisoner could easily drag the PCO to the ground. Control and restraint methods, which require hands to be free, cannot be used. In double cuffing, such methods would not be required. Single cuffing he regarded as a ‘dangerous technique’, and while it could be done, it should not be used for a risky prisoner – ‘you’d almost want to rule out any type of single cuffing’. If you were considering this, you’d need a very wide risk assessment, in a complete sense.

[71]      In the present situation, a heart condition and asthma added to the requirement for double cuffing, as it became less desirable to physically restrain a prisoner. The risk of physically restraining a prisoner with a physical condition was ‘absolutely massive’. Mechanical restraint meant you could avoid physical restraint if an event occurred, which was much safer for a prisoner with a physical health complaint. The event need not be violence – sometimes just smelling fresh air might trigger a desire to escape. There was also the risk of passing contraband. Someone in a public area may have a go at the prisoner. Drugs and alcohol markers were important, for lots of reasons. A drugs problem might mean a higher threshold to pain, and therefore less restrained struggling. Sudden collapse might be possible, and breathing problems may result.

[72]      Of all the mechanical restraints available, such as body belts, leg straps, pinnel belts and the like, handcuffs were the least intrusive.

[73]      This evidence was tested but was not contradicted or challenged further. I have no reason to doubt it, and accept that Mr Baskind has conducted a balanced, insightful exercise in assessing the risk to the pursuer, and the system as a whole. Some criticism can be made of the information supplied in the PERs but this does not have a material part to play in the present case.

[74]      Lorraine Hailes was formerly a custody officer with the defender in 2013. She was referred to an occasion when she escorted the pursuer, and had no direct recollection of the event. She confirmed her name on the PER 6/3 of process, page 5. She did discuss the five risk factors set out in the PER. She confirmed that double cuffing was appropriate, unless there was a reason for ‘risk assessing it down’. No such reason suggested itself here.

[75]      She spoke to the process of dynamic risk assessment when with a prisoner. She was trained to assess the escort, and it was automatic and unthinking. There would be a briefing beforehand.

[76]      She had never used a chain to lead anybody. Apart from anything else, there was no requirement to do so. A chain would only be used if the prisoner was in a wheelchair or used walking sticks, as it made it easier for the prisoner. She would not think of using a chain as ‘double cuffing’.

[77]      Thomas Bolt is another former custody officer employed by the defender. He confirmed his signature on the PER 6/3 of process, page 2. He noted the three risk factors. He also spoke about the process of dynamic risk assessment, and his training. He’d known the hospital quite well, as he’d been there several times.

[78]      He confirmed that the entry ‘permission to take off cuffs’ was by him. The entry meant that he had phoned to get permission to take the cuffs off, so that the pursuer could get on the bed. He confirmed the cuffs would have been removed following this. There were three PCOs on that visit, for the reason that cuffs would be removed. The three PCOs were himself, George Roy and R. Bain (see 6/5). I accept that evidence, supported as it is by contemporary documentation. It directly contradicts the pursuer’s claim, and I reject that.

[79]      I accept this evidence of all the defender’s witnesses as credible and reliable, for the foregoing reasons. I prefer the defender’s evidence to that of the pursuer where there is a conflict.

 

Submissions

[80]      Both counsel helpfully made written submissions and these are available with the process. The pursuer’s counsel submitted that breaches of Article 3 and Article 8 were made out in the circumstances, and that the appropriate remedy was not merely declarator to that effect by also an award of damages. The test for damages being appropriate is that it is ‘necessary to afford just satisfaction’ (Human Rights Act 1998 section 8(3)) and that test was met here. She helpfully appended a list of cases, namely Mouisel v France (above), Gorodnitchev v Russia (no 52058/99), McCormack v G4S (no 2YN 57542) and R (Graham) v Secretary of State [2007] EWHC 2940 (Admin), which showed a range of awards from £500 to 15,000 Euros, and submitted that this case fell within the bracket of these awards.

[81]      The defender’s counsel submitted that there had been no such breach or breaches, that the requisite tests were in any event not made out, and that no award should be made.

 

Decision

Credibility and reliability of evidence

[82]      The pursuer’s evidence was limited and of poor quality. He presented as tired and somewhat jaded, and his evidence was somewhat vague and largely unspecific on facts. He had no supporting evidence in relation to his claim that he was subject to degrading treatment, and his case was based on his testimony alone. Examining that testimony in detail, there is very little beyond a fairly mundane description of what anybody else would experience in such visits, the distinguishing feature being, of course, that he was in double handcuffs and therefore visibly remarkable for that reason to passers-by and other hospital staff and users. I have already discussed the deficiencies in the pursuer’s evidence.

[83]      The tests, referred to below, bear to be objective tests, but a useful check is to consider how those present regarded the events of those three visits. Three of the witnesses were present, although two of those witnesses have no direct recall of these events, because they were of a routine nature. They could speak only to the routine conduct of a typical such visit, and what the sheet markings might mean.

[84]      The two PCOs, Lorraine Hailes and Thomas Bolt, did not consider events to be remarkable, as they followed a set pattern. The fact that a routine was followed does not necessarily, of course, mean an end to the claim, because the routine may not be ECHR compliant. I consider this below. Ms Hailes and Mr Bolt both described their practices of dynamic risk assessment, and the routine nature of double cuffing the pursuer. They did not recall the pursuer’s visits in particular. Mr Bolt described filling in the PER form with ‘permission to take off cuffs’. No reason was suggested why this entry might be inaccurate, and I accept that it is correct. It contradicts the pursuer’s claim that the cuffs were never undone.

[85]      The only other witness speaking to the visits was, of course, the pursuer. I have set out his evidence above. He spoke to being ‘affronted’, ‘humiliated’, feeling he was ‘nobody, like a piece of dirt’ and ‘led around like a dog’.

[86]      I will deal with these issues below. Overall, however, I was not able to accept the pursuer’s evidence at face value. It was thin, unspecific and showed no ability to see another point of view other than his own. On the other hand, the defender was able to produce contemporary documentation which serves to contradict his evidence. I accept that this documentation is contemporary and accurate, and it was not suggested otherwise. The pursuer’s evidence was undermined on a number of specific issues. The first was whether his handcuffs were ever removed – he denies this, but the contemporary PER states that permission was given for this. I do not accept that permission would have been sought were this not to be followed through, as there is no logical basis to do so, and the pursuer appears to be unreliable on this point. The second was his describing the allegation that he was violent as a ‘load of rubbish’ – a bold and incomprehensible statement from someone with his record of violence and attempted murder. Third, he stated that he had never taken drugs in prison, but was then required to admit that he had received and eaten a small amount of cannabis during a prison visit. Fourth, he denied ever claiming he was chained to a machine, despite his pleadings saying otherwise, and thought he might have stated only that ‘there was every chance’ he was chained to a scanner. He is either misrepresenting the truth, or his evidence on hard facts cannot be shown to be reliable on this. By contrast, the defender’s position is vouched by contemporary documentation.

[87]      I was unable to regard the pursuer’s evidence as either credible or reliable, and I reject it as a source upon which I can rely. I accept the defender’s evidence about the events during those visits.

 

Affront or humiliation

[88]      This evidence fails due to lack of credibility and reliability. The only reliable source of information about these events is the written records of these visits. There is nothing regarding any complaint or any observation made either by or of the pursuer regarding his mood or treatment. He comments that he is ‘bothered with nerves and depression’ (without attributing cause). These negative feelings, if genuine, are equally attributable to such a condition, and therefore cannot simply be assumed to be due to his treatment during three short hospital visits. The expression ‘you should see the way I live my life’ might accurately reflect his mood, but in the case of an unemployed former prisoner with a long history of imprisonment and drug use, there is no shortage of possible causes for this.

 

Single cuffing v double cuffing

[89]      In any event, this action must fail for a separate reason. Even if it were to be accepted that the pursuer felt affronted, humiliated or degraded, there is no clear causal connection with double cuffing. It is important to note that the pursuer’s case does not complain about single cuffing. If the pursuer had simply been cuffed to a PCO wrist-to-wrist, it is plain from his evidence that he would have no complaint. He stated that he expected to be single cuffed, not double cuffed. He regarded that as ‘standard procedure’. He stated that he would not have felt as humiliated with single cuffing.

[90]      The humiliating events which he identified were children staring, parents pointing, passing a bus stop and sitting in a busy waiting area on more than one occasion. He failed to explain, and no explanation suggests itself, of how this would have been improved had he been uncuffed, or single cuffed. Uncuffed (and neither the pursuer nor his counsel suggested that was an appropriate measure for a prisoner with his record) he would have required several more than two officers, possibly four or five. That could only add to his distress, not detract from it, as it would add gravity and visibility to the PCO presence around him. Single cuffed, he would still have had handcuffs on, and would still have had an escort of at least two PCOs and most likely three PCOs (as in fact happened on his last visit, when the cuffs required to be removed). Again, that would contribute to gravity and visibility. Even if there had only been two PCO’s, he was always going to present as an escorted prisoner in handcuffs.

[91]      Accordingly, there is no causation. He would have been at least in substantially the same position had he only been single cuffed. On the evidence, he would have been worse off, as an extra PCO would have been required. Not even he argued that no cuffs, and two PCOs, was a credible or reasonable precaution.

 

‘Led around like a dog’

[92]      This lurid suggestion was of interest. The pursuer first introduced the proposition in cross-examination that he was led on an escort chain, a three metre long chain worn instead of the cuff to the PCO. He later said that this was ‘at all times’. I do not accept this evidence, as it bore the marks of embellishment. He also denied ever stating that he had been chained to a machine, but accepted that he may have hinted at that. It is another instance of the pursuer’s evidence being incredible and unreliable. I do not accept that the pursuer has proved this element of his claim.

[93]      Further, I accept that the defender has shown that it did not happen. On Mr Baskind’s evidence it is inherently unlikely. The whole point of double cuffing is to restrict movement in an insecure environment.  A three-metre chain would make this more difficult, not easier. It would not permit control in the same way. I accept the evidence from PCOs and Mr Baskind that the purpose of the chain is to allow distance between PCO and prisoner, to allow access to treatment, and to allow a more confidential talk with the medical staff, and that the chain was used in this way.

 

The use of double cuffs

[94]      However unpersuasive the pursuer’s evidence may be, it is still necessary to consider whether the defender’s system overall was degrading or inhumane.

[95]      The first question is whether it was necessary to double cuff a prisoner, such as the pursuer, who was being taken from a secure environment to an insecure environment. I accept that this was not only a reasonable judgement on the part of the defender, but also necessary. The evidence of Mr Baskind was clear and uncontradicted. What is involved is a prediction of likely behaviour, of risk, against a background where a prisoner may act dishonestly or spontaneously and therefore cannot be relied upon to behave appropriately. The potential risks are as summarised by Mr Baskind, and include damage to property, passing of contraband, risk to members of the public, to hospital staff, to escorting staff and to the prisoner himself or herself. There is no credible scenario, and none was suggested, that a prisoner in a secure prison with a significant record of violence, health problems and drug taking, could be treated on a non-cuffed ‘trust’ basis.

[96]      There are a number of good reasons why single cuffing is insufficient, as set out by Mr Baskind, and include the difficulty of controlling the prisoner and his hand-movements, and the corresponding requirement to escort more closely with more staff. That itself is likely to create a risk of injury due to responding to a situation, rather than restraint to prevent the situation arising.

[97]      Double cuffing appears to be reasonable and proportionate. It is also said to be widespread practice. No contrary evidence was led to show any support for a contrary view. The pursuer has failed to prove that the use of double cuffing was inhumane. I would have expected some expert evidence to the contrary if this were to be placed in issue.

 

Absence of individual risk assessment

[98]      The pursuer’s case founded on this feature at an early stage of this procedure as self-evidently showing a lack of proportionate treatment by the defender. Having heard evidence, I do not accept that this was either an accurate claim or a material factor in the present case.

[99]      Even if an individualised risk assessment had been carried out on each occasion, a prisoner with the pursuer’s characteristics would have justified, indeed required, the use of double cuffs. Violent, drug-associated and health-challenged, he was a prime candidate for double cuffs. Any attempt to escape, or receive goods, could not otherwise be avoided and, having regard to his health, may prove risky to prevent.

[100]    In any event, I do not accept that an individualised risk assessment was not carried out. On the first and third visits, the PCOs accepting the pursuer were in receipt of a PER which had individual information which allowed a risk assessment. This information was individual to the pursuer. While it is apparent that the prison made different assessments on different occasions, I did not understand it to be said this could be blamed on the defender. In relation to the second visit, when the PER was blank, the defender’s PCOs made a cautious risk assessment, and applied double cuffing. This, in fact, was an assessment, albeit using thin information. More fundamentally, it led only to the standard and appropriate precaution of double cuffing. Mr Baskind’s evidence was that this was the only, minimum form of precaution. Additional assessment would not have led to a lessening of this level of restraint.

[101]    As counsel for the defender submits, the question for the court is not whether the decision-making process was satisfactory or not, but rather whether the restraint was justified on security grounds. It plainly was.

 

Article 3

[102]    For the pursuer to succeed in proving a breach of his Article 3 rights he has to meet a number of criteria.

[103]    The treatment must reach a minimum level of severity, and this is a high test (R v GSL UK Limited [2007] EWHC 2227 (Admin)). Treatment which is unwelcome or unpleasant is not enough. The pursuer’s evidence was enough to show that he regarded the double cuffing as unwelcome, but not that the effect could fairly be described as severe to any extent. It was inevitable that wearing handcuffs, and being accompanied by two PCOs, would attract attention. At best, the pursuer described exactly what one might expect from a prisoner under escort being taken through a public waiting area for treatment, and then back again. It was impossible to discern how any reasonable alternative custody arrangement would have made this more palatable and less obvious to the public. To have no custody arrangement is not a credible suggestion, and this was not advanced.

[104]    There is no suggestion in this case that the treatment was intended to cause adverse feelings in the pursuer. I accept the evidence of Mr Baskind that it was not, as this is the opposite of what the prison regime intends.  As Mouisel v France (above) discusses, handcuffing does not normally give rise to an infringement of Article 3 where the measure has been imposed in connection with the lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary. Here, the exposure was no more than necessary, no force was used, and the pursuer was in lawful detention and being escorted in an insecure public area. The practical outcome was just and proportionate, and no infringement of the pursuer’s Article 3 rights took place. Even if there had been some justified complaint, it is clear that the relatively minor nature of these events did not reach the minimum level of severity required for any judicial intervention or recognition.

 

Article 8

[105]    Treatment interfering with Article 8 rights must be in accordance with the law, must pursue a legitimate aim, and must be necessary in a democratic society. Any interference must be proportionate to the legitimate aim pursued. There is no ‘minimum level of severity’ test here.

[106]    As to proportionality, Lord Reed set out a four-part test in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39 at page 74:

‘It is now the standard approach of this court to address the following four questions when it considers the question of proportionality:

-     whether the objective is sufficiently important to justify the limitation of the perceived right,

-     whether the measure is rationally connected to the objective,

-     whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and

-     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 that the measure will contribute to its achievement, the former outweighs the latter (i.e. whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure)’.

 

[107]    On the evidence, there is no question that the use of double cuffing was proportionate. No lesser precaution, such as single cuffing, would be as safe or avoid the risks arising when a prisoner such as the pursuer was taken from a secure environment to an insecure public environment. The nature of the restraint was directly related to, and dictated by, the risks arising, and no lesser restraint would have achieved the same or similar levels of safety in any less intrusive or embarrassing way. To the extent that the absence of an individual risk assessment is relevant here, it would have made no difference, and in any event was at least matched by the dynamic risk assessment carried out by each PCO as a matter of course on every escort, no matter who the prisoner was. There was no breach of the pursuer’s Article 8 rights.

 

Appropriate remedy

[108]    The pursuer has failed to prove any case based on the practice of double cuffing when he took part in three hospital visits in 2013. It follows that the defender’s actings were not unlawful. Even if he had done so, I would not have found that it was ‘just and appropriate’ to award any damages. The pursuer has a significant history of violence, which by itself would amply justify the double cuffing in all of the hospital areas in which he found himself. His restrictive treatment was no more than was justified by his own actions, and he can have no complaint.  His discomfiture was minor and very short-lived, and there is no convincing evidence of any short-term, far less long-term, consequences. His complaints, such as they were, appeared to be that life was hard, that he suffered from depression, and the future seemed bleak. I could not fairly make any persuasive link between those complaints and these three, relatively minor events. There is no ‘just satisfaction’ to be had, and if I were wrong on that, any such satisfaction would not require an award of damages.

[109]    In particular, I reject the pursuer’s submission that as a matter of policy, where no individualised risk assessment was carried out, an award of damages is necessary in recognition of the inherent risk of breach of ECHR rights. The protection is not aimed at ‘risk’ of breach, but actual breach. Even if ‘risk’ were the proper focus, it would not follow that the correct manner of marking a system failure would be to award damages to a pursuer who was not, in fact, unfairly or inhumanely treated. In fact, the facts of the present case do not support any such argument, but even if they did, that argument is flawed.

[110]    I would note for completeness that, had damages been appropriate, the events complained of were so minor and of such a limited duration that I would have awarded £100.

 

Disposal

[111]    I will accordingly repel the pursuer’s pleas-in-law, sustain the defender’s second and third pleas-in-law and assoilzie the defender from the craves of the initial writ.

[112]    No submissions were made as to expenses. I will appoint a hearing, without fixing a date, for that purpose. It can be discharged without necessity for appearance in the event that parties are able to agree final disposal.