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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Napier v. The Scottish Ministers  ScotCS CSIH_16 (10 February 2005)
Cite as: 2005 GWD 9-136, 2005 SLT 379,  CSIH 16,  UKHRR 268,  ScotCS CSIH_16, 2005 1 SC 307
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Napier v. The Scottish Ministers  ScotCS CSIH_16 (10 February 2005)
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
OPINION OF THE COURT
delivered by THE LORD PRESIDENT
PETITION and ANSWERS
in the cause
Petitioner and Respondent;
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 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.  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).  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.  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  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".
The standard of proof
The contention for the respondents
 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. 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).  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  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  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".
 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  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. 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)"
"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...".
"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.
 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".
"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".