Justice on trial: Supreme Court’s Ruddy critique raises issues

In a unanimous decision in November, a five-judge bench of the UK Supreme Court, including Lord Hope and Lord Reed, overturned a judgment of the Inner House that dismissed Mr Ruddy’s claim for damages against the then Chief Constable of Strathclyde, William Rae, and the then Lord Advocate, Elish Angiolini, following an alleged assault on him by Strathclyde Police officers.

The language of the judgment was blunt: that the leading judgment delivered by Lord Clarke was misguided in dismissing the action as incompetent and had placed too much reliance on matters of procedure at the expense of the guiding principle of pursuit of justice.

“Rules of procedure should, after all, be servants, not masters, in matters of this kind,” said Lord Hope.

Lord Hope’s judgment makes it clear that a claim for damages for breach of an individual’s human rights can be brought in the sheriff courts and does not, as stated by Lord Clarke, have to come to the Court of Session for judicial review.

The Supreme Court referred the matter back to the Inner House to rehear the appeal against the decision of the Sheriff Principal in Glasgow to dismiss the action. That rehearing is scheduled for the first week in March. While the rehearing will reapply the law as instructed by the UK Supreme Court, there is a broader context of investigation of complaints against the police as we move towards a single Scottish force.

The overhaul of the system of investigating complaints against the police in England and Wales announced last week by the Home Secretary must also put the issues of transparency and independence of such investigations on the agenda in Scotland, even if Theresa May and Mr Ruddy make unlikely allies.

The first chapter of the long and winding case took place on 5 September 2004, when Mr Ruddy was arrested by police officers in Tayside on an outstanding warrant issued by Strathclyde Police. He was held in the cells overnight. Officers from Strathclyde arrived the next day to drive him back to Glasgow. During that journey, Mr Ruddy alleges, he was “abused, threatened with violence and assaulted”.

In November 2004, he sought legal aid to bring a damages action against the chief constable of Strathclyde Police. When the prospective action was intimated to them, Strathclyde Police took the allegation into its complaints procedure and in turn advised the Glasgow procurator fiscal’s office of the allegation. The PF instructed that an investigation be carried out by the police complaints branch.

In due course, by mid-2005, the investigation concluded that no officers should be disciplined and the procurator fiscal advised Mr Ruddy that there would be no prosecution of any officer.

In August 2005, Mr Ruddy began civil proceedings in Glasgow Sheriff Court. There were two separate craves set out in the initial writ and it is the double-barrelled approach that appears to have caused such consternation within the Scottish courts.

First, he sought damages at common law against the chief constable of Strathclyde Police for loss, injury and damage alleged to have suffered as a result of the actings of the police officers, and also for a breach of his rights under article three of the European Convention on Human Rights, for both of which the chief constable was said to be vicariously liable. Article three addresses matters of torture and inhuman and degrading treatment. Secondly, there was a claim of damages against the chief constable and the Lord Advocate jointly and severally for a breach of the appellant’s right to an effective investigation into his complaint.

On various dates between November 2006 and April 2007, the sheriff heard a debate in which the respondents argued that the claim that was made against them for breach of the procedural obligation under article three of the convention was irrelevant. The action was not challenged on grounds of competency.

On 5 June 2007, the sheriff held that the first claim was irrelevant, refused to allow the second crave to go to proof so far as it was directed against the chief constable, and dismissed the action so far as it was directed against the Lord Advocate. The sheriff’s decision was upheld by the sheriff principal in April 2008.

Mr Ruddy’s agents then appealed to the Court of Session. The case was called before Lady Paton, Lord Clarke and Lord Abernethy on 7 December 2010. However, the court informed counsel that it seemed to it, having considered the papers before the hearing, that the case raised fundamental questions of competency. It was suggested that, while it was competent to bring a claim for damages at common law in the sheriff court, the second crave was a distinct and separate claim which raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session.

In this way, the appeal took a handbrake turn away from the issues that had been rehearsed in the lower courts. Competency became the central issue and was ultimately the basis for Lord Clarke’s judgment.

His judgment stated: “What the appellant is seeking to do in the present proceeding is to bring an action against two defenders in a case of unconnected wrongs … Legal systems, like ours, devise forms of action and rules of procedure relating to them. They do so for the obvious good purposes of avoiding undue complexity and keeping good order in litigation. Omnibus pleadings of the sort sought to be employed in this case would defeat these ends. If permitted they would result in litigation bedlam.”

It was an approach that was comprehensively dismissed by the UK Supreme Court. Lord Hope wrote: “Lord Clarke was right to refer to the need to avoid undue complexity and to keep good order in litigation … But the pleadings in this case are not unduly complex, and good order in litigation favours the two claims being heard together.”

It seems to me that such a devastating critique raises some key questions:

Why were Ruddy’s complaints not independently investigated in the first place?

Why was there not some form of “knocking heads together” at Scottish Government level to settle this out of court – at much lower cost, and years ago?

Is an adversarial legal system the best system – and the best use of taxpayers’ money – in civil justice?

Would alternative dispute resolution (mediation) have achieved a quicker – and cheaper – outcome?

What “judicial lessons” can – our should – be learned from this?

What are the public sector best-practice administrative and management lessons that can be learned from this Ruddy police complaint?

Whatever the outcome of the underlying damages case – the evidence has never been tested – the resounding verdict of the Supreme Court, that injustice should not be allowed to hide behind the skirts of wrongly applied procedural rules, raises many questions for the police, politicians and the justice system in Scotland.

• Mark R Whittet is a director of the Scottish Legal Action Group (www.SCOLAG.org)