Prisoner to be awarded damages for use of ‘disproportionate’ restraint by G4S during hospital visits

A prisoner who claimed the restraint used by security officers to take him from jail to attend hospital appointments was “disproportionate” is to be awarded damages after a sheriff ruled the inmate’s human rights had been breached.

The pursuer James McDowall argued that the absence of an “individualised risk assessment” meant the application of double handcuffs by the defenders G4S on each occasion he attended for a hospital appointment, without reference to any supposed risk that he was said to present, was “incompatible” with his rights under articles 3 and 8 of theEuropean Convention on Human Rights.

Sheriff Frank Crowe at Edinburgh Sheriff Court held that the circumstances surrounding the pursuer’s visits to hospital met the “minimum threshold” for the court to consider as violations of his article 3 and 8, which prohibit “inhuman or degrading treatment” and protect the right to respect for one’s “private life” respectively.

The court heard that the pursuer, 53, was sentenced to nine years’ imprisonment for attempted murder.

He also had a previous conviction for assault to severe injury and permanent and disfigurement.

The pursuer raised an action for damages under section 7 of the Human Rights Act 1998 in relation to the use of restraint by the defenders while he was taken from prison to attend three hospital appointments in 2013.

It was contended that on each occasion the pursuer was taken to hospital and escorted in public areas and to examinations in double handcuffs - behaviour which was described by his lawyer as “inhuman and degrading”.

The pursuer submitted that since no risk assessments took place prior to the pursuer’s visits to hospital they did not respect his rights and feelings and as a result he felt “humiliated” when taken through public areas of the hospital, where he remained restrained while waiting for and during those appointments.

The pursuer sought declarator that his statutorily protected right had been breached and just satisfaction damages of £10,000.

The defenders argued that the pursuer had a “history of violence and of drug smuggling” and as with all prisoners in such circumstances outwith prison - particularly those attending hospital appointments - there was the risk of escape.

Double handcuffing the pursuer was “necessary” in light of the risks posed and the absence of individual risk assessments was “not fatal” because the outcome would have been the same had such risk assessments been carried out.

The pursuer was serving a sentence for a serious offence and restraint for security purposes was “justified”, therefore the pursuer could not claim a remedy under the Human Rights Act, it was submitted

The defender’s position was that there should be a proof before answer to determine all of the facts and in that way the court can assess whether the minimum threshold for a violation of articles 3 and/or 8 has been reached.

However, the pursuer submitted that since no risk assessments had been carried out prior to these hospital visits the defender’s averments in this context were “irrelevant” and the matter should proceed to a consideration of quantum only.

The sheriff upheld the pursuer’s preliminary plea and granted declarator that the use of restraint during the pursuer’s hospital visits was incompatible with the pursuer’s rights under articles 3 and 8 of the European Convention.

In written judgment, Sheriff Crowe said: “While the detention and handcuffing of individuals is necessary in a democratic society to ensure the operation of a fair criminal justice system, as can be seen from the above authorities the use of detention and restraint must be necessary and proportionate in all the circumstances.

“While hospitals are not normally designed to have the same level of security as prisons ECHR jurisprudence is clear that where a prisoner is undergoing treatment other arrangements can often be made by deploying his escort in such a way that security is maintained while the prisoner can consult, receive treatment, discuss medical circumstances and be examined, intimately if need be, without being restrained or having prison officers in close proximity violating rights of privacy.”

The sheriff observed that the English authorities showed that risk assessments appeared to be the norm in England and Wales, but in the pursuer’s case no such risk assessments were undertaken prior to the three hospital visits.

The sheriff continued: “On each occasion there seemed to be ample officers guarding the pursuer. It ought to have been possible to have him single handcuffed to one officer and tightly flanked by the other or others when moving about the hospital and in the waiting areas.

“If steps like these had been taken the whole exercise would have been less obvious to the public, less intrusive for the pursuer yet retained a necessary level of security befitting a long-term prisoner.

“Although the allegation mentioned in the last visit is disputed I am of the view the circumstances surrounding the pursuer’s visits to hospital are such that they meet the minimum threshold for the court to consider as violations of the pursuer’s article 3 and 8 rights, albeit at the lower end of the scale.”

The case was set down for further procedure with a view to fixing a proof on quantum.

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