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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 82
A152/24
OPINION OF LORD SANDISON
In the cause
SHARON MacFADYEN
Pursuer
against
(FIRST) THE SCOTTISH MINISTERS;
(SECOND) THE LORD ADVOCATE; and
(THIRD) THE CHIEF CONSTABLE OF POLICE SCOTLAND
Defenders
Pursuer: McBrearty KC; Drummond Miller LLP
First Defender: Reid KC, Scullion; Anderson Strathern
Second Defender: James: Scottish Government Legal Directorate
Third Defender: Ledingham Chalmers
21 August 2024
Introduction
[1]
The first defenders, the Scottish Ministers, seek by way of motion a 6 month sist of
this action raised against them, the Lord Advocate and the Chief Constable of Police
Scotland in respect of the death of the pursuer's nephew, Allan Marshall, while in the
custody of the Scottish Prison Service on 24 March 2015, or at least such a sist in respect of
the action as directed against them. The motion was opposed in both its alternatives by the
pursuer. The Lord Advocate, though represented at the motion hearing, adopted a neutral
2
position in relation to its disposal. The Chief Constable did not appear and was not
represented.
Background
[2]
Allan Marshall died as a result of a hypoxic-ischaemic brain injury on 28 March 2015,
four days after having been restrained by prison officers in the employment of the Scottish
Prison Service while a remand prisoner at HMP Edinburgh. The SPS is an Executive Agency
of the Scottish Government. The pursuer brings a claim as a victim in terms of section 7(1)
of the Human Rights Act 1998 in respect of the defenders' alleged failure to comply with
their respective substantive and procedural obligations under the 1998 Act. In broadest
outline, it is alleged that the prison officers who restrained Mr Marshall (for whose actions
the first defenders are ultimately responsible in law) failed to comply with their obligations
under Article 2 of the European Convention on Human Rights by using force against him
which was not absolutely necessary nor strictly proportionate to any relevant legitimate aim,
and separately by failing to ensure that any risk to his life was minimised, resulting in his
preventable death.
[3]
In relation to the other defenders, the pursuer claims that the duty to protect life
under Article 2 necessitates an official investigation which is effective, independent and
expeditious in circumstances where individuals have been killed as a result of the use of
force, in order to secure the effective implementation of the domestic law safeguarding the
right to life and to ensure accountability for a death occurring involving state agents. It is
alleged that in various particularised ways the second and third defenders failed and are
continuing to fail to carry out such an investigation and consequentially are in breach of
3
their obligations under the Article. The pursuer seeks declarators that each of the defenders
acted unlawfully, together with awards of damages against them by way of just satisfaction.
[4]
A Fatal Accident Enquiry was held by the Sheriff at Edinburgh in respect of
Mr Marshall's death. It began in July 2018 and concluded in August 2019 with a
determination that his death had been entirely preventable. On 25 May 2015, the Crown
renounced any right to prosecute any employee of the SPS for any crime that might be
thought to arise out of what had happened on the day of Mr Marshall's restraint. The prison
officers involved in the restraint gave evidence at the FAI, and CCTV footage of much of
what transpired was also examined.
[5]
Since at least March 2023 Police Scotland, at the direction of the second defender, has
been investigating the possibility of criminal corporate responsibility by the SPS in respect of
Mr Marshall's death. The first defenders understand that that investigation encompasses
whether an offence has been committed under the Health and Safety at Work etc Act 1974 as
well as whether the crime of corporate homicide may have been committed. They maintain
that the action should be sisted prior to their being required to lodge defences, so as to avoid
prejudice to the proper administration of justice in any subsequent criminal proceedings.
European Convention on Human Rights
[6]
Article 2 of the European Convention on Human Rights is in the following terms:
"1.
Everyone's right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which the penalty is provided by law.
2.
Deprivation of life shall not be regarded as inflicted in contravention of this
Article when it results from the use of force which is no more than absolutely
necessary:
in defence of any person from unlawful violence
4
in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained, and
in action lawfully taken for the purpose of quelling a riot or insurrection."
First defenders' submissions
[7]
Senior counsel for the first defenders submitted that it would be prejudicial to
require them to lodge a defence to the claim as that would require them to state a position
on criminal charges which might be brought against them or others.
[8]
It was accepted that, unless the interests of justice dictated otherwise, civil
proceedings should be litigated continuously and without interruption, and that it was for
the party seeking a sist to show why that was necessary in the interests of justice. Whether
to grant a sist was a discretionary decision. It was competent to sist a cause in part (eg in
respect of one defender but not another): Bee v T&N Shelf Twenty Six Ltd 2002 SLT 1129.
[9]
In Rangers FC Group Ltd v Joint Liquidators of RFC 2012 plc [2017] CSOH 85,
liquidators of a company facing a creditor's claim concluded that the agreement founding
the claim was part of a fraudulent scheme to which the creditor was a party, and rejected it.
There were ongoing criminal proceedings in connection with the same matter. In an appeal
to this court against the liquidators' adjudication, parties wished a debate to be fixed, but the
Lord Ordinary (Doherty) instead sisted the proceedings, noting:
"[11] Having considered the terms of the indictment in the criminal proceedings I
am satisfied that (i) whether there was a fraudulent scheme involving the noter, and
(ii) whether the noter was the recipient of unlawful financial assistance from the
Company, are both issues which arise in the proceedings. In those circumstances
hearing the appeal before the criminal proceedings have been concluded would
trespass upon matters at issue before the High Court of Justiciary, with the risk of
prejudice to the administration of justice in those proceedings. The risk can be
avoided by sisting the appeal meantime. That will give rise to some delay in the
appeal's disposal. Any delay is prejudicial to the interests of creditors (the noter as
secured creditor if the noter's claim is a good one, or the body of unsecured creditors
5
if it is not). However, in my opinion that disadvantage, and any disadvantages to the
respondents arising from the sist, are outweighed by the benefit to the
administration of justice in the criminal proceedings.
[12] Prohibitions on reporting might reduce, but in my opinion would not remove,
the risk of the appeal proceedings impinging upon the criminal trial. Nor do I think
it can be said with confidence ab ante that any evidence about the appeal would be of
no relevance to, and would to be inadmissible in, the criminal proceedings. Even if it
was inadmissible, in what may well be the highly charged atmosphere of the trial
there can be no guarantee that it would not emerge."
[10]
Article 2 complaints such as those advanced in the present case had to be subjected
to the most careful scrutiny, taking into account not only the actions of the agents of the state
who actually administered the force but also the surrounding circumstances, including
matters such as the planning and control of the actions under examination. In Boukrourou v
France, App No 30059/15, 17 November 2017, the Fifth Section of the European Court of
Human Rights had observed:
"[54] The Court reiterates that Article 2 of the Convention, which safeguards the
right to life, ranks as one of the most fundamental provisions in the Convention.
Together with Article 3 of the Convention, it enshrines one of the basic values of the
democratic societies making up the Council of Europe. The object and purpose of
the Convention as an instrument for the protection of individual human beings
requires that its provisions be interpreted and applied so as to make its safeguards
practical and effective (see, among other authorities, McCann and Others v the United
Kingdom, 27 September 1995, §§ 146-47, Series A no. 324; Taļs v. France, no. 39922/03,
§ 82, 1 June 2006; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 174 and 177,
ECHR 2011 (extracts)).
[55] In the light of the importance of the protection afforded by Article 2, the Court
must subject to the most careful scrutiny complaints about deprivation of life, taking
into consideration not only the actions of the agents of the State who actually
administer the force but also all the surrounding circumstances including such
matters as the planning and control of the actions under examination (see, for
example, McCann and Others, cited above, § 150, and Scavuzzo-Hager and Others v.
Switzerland, no. 41773/98, § 89, 7 February 2006).
[56] The Court reiterates that the exceptions delineated in paragraph 2 indicate that
Article 2 extends to, but is not concerned exclusively with, intentional killing. The
text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily
define instances where it is permitted intentionally to kill an individual, but
describes the situations where it is permitted to "use force" which may result, as an
6
unintended outcome, in the deprivation of life. The use of force, however, must be
no more than "absolutely necessary" for the achievement of one of the purposes set
out in sub-paragraphs (a), (b) or (c) (see McCann and Others, cited above, § 148, and
Saoud v. France, no. 9375/02, 9 October 2007).
[57] In assessing evidence, the Court adopts the standard of proof "beyond
reasonable doubt". However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of unrebutted presumptions of
fact (see Centre for Legal Resources on behalf of Valentin Cāmpeanu v. Romania [GC], no.
47848/08, § 131, ECHR 2014)."
[11]
Given the inherently vulnerable position of persons in custody, the state had a duty
to protect them. Accordingly, where a person was in good health when he went into
custody but was found to be injured on release, it was incumbent upon the state to provide
an explanation of how such injuries were caused. That obligation was particularly stringent
where the individual had died. In essence, the burden of proof rested on the state to provide
a satisfactory and convincing explanation. In Salman v Turkey (2002) 34 EHRR 17 the ECtHR
had observed:
"[99] In the light of the importance of the protection afforded by Article 2, the Court
must subject deprivations of life to the most careful scrutiny, taking into
consideration not only the actions of State agents but also all the surrounding
circumstances. Persons in custody are in a vulnerable position and the authorities
are under a duty to protect them. Consequently, where an individual is taken into
police custody in good health and is found to be injured on release, it is incumbent
on the State to provide a plausible explanation of how those injuries were caused.
The obligation on the authorities to account for the treatment of an individual in
custody is particularly stringent where that individual dies.
[100] In assessing evidence, the general principle applied in cases has been to apply
the standard of proof "beyond reasonable doubt". [See Ireland v. United Kingdom
(N25): (1979-80) 2 E.H.R.R. 25, para. 161.] However, such proof may follow from the
co-existence of sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. 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 and death occurring during that detention. Indeed, the burden of proof may
be regarded as resting on the authorities to provide a satisfactory and convincing
explanation."
7
[12]
Where the state had employed properly trained staff and taken all the relevant
general precautions, but a prisoner nonetheless died as a result of the negligence of a
member of the prison staff, the prison authorities would be liable for that negligence but
there would be no violation of Article 2 Savage v South Essex NHS Trust [2009] 1 AC 681,
"If the authorities failed to put in place appropriate general measures to prevent
suicides among the prisoners in a particular prison and, as a result, a prisoner was
able to commit suicide, there would be a breach of article 2. If, on the other hand, the
authorities had employed properly trained staff and taken all the relevant general
precautions, but a prisoner none the less succeeded in committing suicide because of
the casual negligence of a member of the prison staff, the prison authorities would be
vicariously liable for that negligence, but there would be no violation of article 2."
[13]
Proceedings in which it was claimed that a public authority had acted unlawfully in
terms of the 1998 Act had to be brought within one year of when the act complained of took
place or such longer period as the court considered equitable: section 7(5) of the 1998 Act.
This action had been brought in May 2024, meaning that the issue of equitable extension of
the limitation period would be a live one. When asked to extend the limitation period, the
court was bound to have regard to the strength of the underlying case when having regard
to the equities of such an extension: Rabone v Pennine Care NHS Foundation Trust
[14]
In respect of the offence of corporate homicide, that was a statutory offence created
by the Corporate Manslaughter and Corporate Homicide Act 2007. It was committed where
the way in which an organisation managed or organised its activities (i) caused a person's
death; and (ii) that amounted to a gross breach of a relevant duty of care owed by the
organisation to the deceased and the way in which its activities were organised or managed
by its senior management was a substantial element of the breach of duty: section 1 of the
2007 Act. A "relevant duty of care" was, read short, a duty of care under the law of
8
negligence: section 2. The offence could only be indicted in the High Court: section 1(7); and
no prosecution in respect of the offence had yet been brought in Scotland. In the present
circumstances, any prosecution under the 2007 Act could only be brought against the first
defenders as the legal entity responsible for the SPS.
[15]
There was a clear privilege against self-incrimination: "It is a sacred and inviolable
principle of the criminal jurisprudence of Scotland, that no man is bound to criminate
himself": Livingston v Murrays (1830) 9 S 161 at 162 per Lord Gillies. A corporate entity
enjoyed the same privilege against self-incrimination as a natural person: Triplex Safety Glass
Company Limited v Lancegaye Safety Glass (1934) Limited [1939] 2 KB 395.
[16]
An FAI was held before a Sheriff for the purpose of establishing the circumstances of
a death and considering what steps, if any, might be taken to prevent other deaths in similar
circumstances: section 1 of the Inquiries into Fatal Accidents and Sudden Deaths etc.
(Scotland) Act 2016. An FAI was mandatory where a person died whilst in legal custody:
section 2. It was not the purpose of an FAI to establish civil or criminal liability, and it did
not do so: section 1(4). An FAI determination was not admissible evidence and might not be
founded upon in any judicial proceedings of any nature: section 26(6).
[17]
Against that background, the Court should exercise its discretion to sist the cause.
The parties being investigated (by the third defender at the direction of the second defender)
included the first defenders themselves. Only the first defenders could be prosecuted under
the 2007 Act. They could not be prosecuted under the 1974 Act: section 48(1). They did not
know who was being investigated with a view to possible prosecution under that Act.
There was a near total overlap between the grounds relied upon in the present action and
what would have to feature in any prosecution, either under the 1974 Act or in respect of
corporate homicide. In practical terms, a defence to the present claim would require the first
9
defenders to plead a position on (i) the incident itself; (ii) the use of force and the
reasonableness of the response by the prison officers; (iii) the systems of work; and (iv) the
training given to officers. Each of those matters would, should there be a prosecution under
the 2007 Act in particular, be matters on which the Crown would require to lead evidence in
order to discharge its burden of proof. The present claim could not be answered by the first
defenders simply opting to put the pursuer to proof (i.e. by advancing no positive position).
Leaving aside the fact that the Court had deplored such an approach Urquhart v Sweeney
2006 SC 591, 2005 SLT 422 at [44] a burden rested on the first defenders in a claim of this
nature: Salman. In substance, the first defenders would have to plead and run their defence
to any likely criminal charge in these proceedings. The risk of prejudice was exacerbated by
the identity of the co-defenders: respectively the very body investigating, and the person
who would prosecute. Other measures (such as reporting restrictions) could provide no
mitigation given that any defences would require to be intimated to those other defenders.
Undertaking to co-operate with a criminal investigation, as the first defenders had done, did
not require disclosure of the defence to a charge which was under consideration. Separately,
whilst the first defenders had committed to co-operate, it did not follow that any individual
involved would co-operate, and could not be compelled to do so. The risk of prejudice was
further increased by the fact that the FAI had already taken place and there had been
considerable media coverage following on from it. Further media attention, seemingly at
the behest of the pursuer, had already been generated by the present proceedings.
Proceeding with this action, with the media attention that could be anticipated, created a
further risk of prejudicing the proper administration of justice should criminal proceedings
be brought.
10
[18]
The claim advanced, and the police investigation that was ongoing, were novel.
There had never been a prosecution under 2007 Act in Scotland. Nor, so far as the first
defenders were aware, had an Article 2 claim of this nature been previously raised in
Scotland. If the Court was going to be asked to consider and determine an important and
novel issue, it was in the interests of justice that the first defenders could respond to that
case uninhibited. Given that any prosecution under the 2007 Act would be novel, it was
particularly important that care was taken to ensure any criminal proceedings were not
prejudiced by anything done in or arising from these civil proceedings. In short, the issues
that led to the sist in Rangers FC Group Ltd caused at least as much concern in this case.
Finally, should the current investigation result in a prosecution and ultimately a conviction,
the pursuer would have the benefit of the presumption in section 10 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1968. Should these proceedings go first, however,
the pursuer would need to lead evidence to prove all of her averments, and she could not
found on the FAI determination to do so.
[19]
In summary, the matters for determination in these civil proceedings and the matters
currently under investigation by the third defender, at the direction of the second defender,
were all but identical and they might be the subject of a prosecution. In such circumstances,
the first defenders submitted that there was a real risk of prejudice to the proper
administration of justice should this action proceed while the criminal investigation
continued. Accordingly, the court was invited to sist the action for 6 months, and thereafter
to review the situation as it then appeared.
[20]
In the event that the court was not persuaded to sist the action as a whole, it was
invited to sist it so far as it concerned the first defenders. The cases directed against the first
defenders on the one hand and the Lord Advocate and the Chief Constable on the other
11
were distinct. The case against the first defenders concerned a concluded act. The cases
against the Lord Advocate and the Chief Constable concerned the (continuing) investigation
into that concluded act. Different issues arose in the two cases. The interests of individuals
who might be subject to prosecution were not engaged by the case against the Lord
Advocate and Chief Constable. The issue which had prompted the first defenders to seek a
sist, being the risk of prejudice to the proper administration of justice in the context of a
possible criminal prosecution, did not arise in respect of either the second or third
defenders.
Second defender's submissions
[21]
On behalf of the second defender, counsel confirmed the nature and extent of the
immunity from prosecution granted to individuals employed by the SPS, and that the focus
of the current police investigation was on the potential impact of the 2007 Act, but otherwise
maintained a neutral position.
Pursuer's submissions
[22]
On behalf of the pursuer, senior counsel opposed the motion in both its alternatives.
Legal issues arising out of Mr Marshall's death had been ongoing for over 9 years without
satisfactory resolution. A decision to grant immunity to individuals employed by the SPS in
respect of the events of the fateful day had been taken by the Crown as long ago as May
2015, and although it was now accepted by the Crown that the subsequent emergence of
certain expert evidence concerning the nature of the restraint techniques deployed rendered
that decision an incorrect one, it could not be revoked. There was no rule of law that civil
actions should be sisted so as to accord priority to related criminal proceedings; rather, that
12
was a matter for the court's discretion. In the present circumstances there was no real risk of
prejudicing any criminal proceedings which might be brought. The issues raised in the
action were peripheral only to those which might feature in any criminal prosecution; there
was no real overlap between the two. The only parties truly at risk of prosecution were the
first defenders, as responsible for the SPS, in the context of their systems of work judged by
the criteria set out in the 2007 Act, and given their status as a public authority they should be
providing willing and candid cooperation in both civil and criminal matters.
[23]
There was no indication of when the current investigations might be concluded and
thus as to when any actual prosecution might commence. Any trial which might eventually
take place was, in all probability, years away. In effect, the first defenders were asking for
an indefinite sist renewable on a six-monthly cycle. There was a strong public interest in
the orderly and expeditious progression of a case such as the present. Any delay which had
occurred in the raising of the current action was not the fault of the pursuer. The facts of the
events of 24 March 2015 had already been thoroughly canvassed in the context of the FAI,
where twelve prison officers had given evidence under immunity from potential
prosecution. Although the Sheriff's determination in the FAI could not be adduced in
evidence in these proceedings, the evidence given at it could be.
[24]
Rangers FC Group Ltd was the only Scottish case bearing any relation to the
circumstances facing the court, and it contained no statement of principle, but rather was
decided purely on its own facts.
[25]
[2008] HLR 27, Richards LJ (with whom Lloyd LJ and Sir Peter Gibson agreed) noted:
"[30] In his submissions, Mr Lofthouse made clear that he was not arguing for a rule
of law that a criminal trial must always take precedence over related civil
proceedings. He submitted, however, that a change of approach was required by the
13
coming into force of the Human Rights Act 1998. Formerly the civil court or tribunal
had a discretion to adjourn if there was a real risk of prejudice to the defendant in
concurrent criminal proceedings; but it did not have to adjourn, and might conclude
that policy factors came down in favour of a speedy determination of the civil case.
Now, however, the civil court or tribunal has a duty to safeguard the defendant's
rights in the criminal proceedings and must not proceed with the civil case if to do so
would be in breach of those rights.
[31] I do not accept that the Human Rights Act 1998 requires any material change of
approach in this area. In my judgment the court still enjoys a real discretion whether
or not to adjourn. The authorities make clear that a relevant consideration is whether
the continuation of the civil proceedings will give rise to a real risk of prejudice to the
defendant in the criminal proceedings. If there is a risk of prejudice, then I would
expect it to weigh heavily in favour of an adjournment pending the conclusion of the
criminal proceedings, but it will not necessarily be decisive. I accept, of course, that
the court must not act in breach of the defendant's Convention rights; but it is
difficult to see how the continuation of the civil proceedings could give rise in itself
to a breach of those rights. As the tribunal chairman held in the present case, the
civil proceedings can be conducted in such a way as to respect them. An additional
and important safeguard lies in the powers of the judge in the criminal proceedings
to stay those proceedings for abuse of process or to limit the evidence admitted at the
trial if, in the circumstances then prevailing, it is necessary to do so in order to
prevent a breach of Convention rights or to ensure a fair trial. The civil court or
tribunal can take into account the existence of those powers when considering the
exercise of its own discretion whether to adjourn."
[26]
Waller LJJ and Longmore J) affirmed the proposition that it was a discretionary matter in
any given case whether there should be a stay, adjournment or postponement and cited with
approval what had been said by Megaw LJ (Brandon LJ concurring) in Jefferson Ltd v Bhetcha
[1979] 1 WLR 898 at 904D 905B, 905D H:
"As I understand it, the judge based his decision on the view that there is an
established principle of law that, if criminal proceedings are pending against a
defendant in respect of the same subject matter, he, the defendant, is entitled to be
excused from taking in the civil action any procedural step, which step would, in the
ordinary way, be necessary or desirable for him to take in furtherance of his defence
in the civil action, if that step would, or might, have the result of disclosing, in whole
or in part, what his defence is, or is likely to be, in the criminal proceedings.
Mr Owen in this court submitted that that is the general rule which ought to be
followed. He did not, as I understand it, submit that it was an invariable or inflexible
rule which would deprive the court of any discretion if the matters which I have
mentioned were established. With the view, if it were put forward, that this is an
14
established principle of law, I would respectfully but firmly disagree. There is no
such principle of law. There is no authority which begins to support it, other than, to
a limited extent, Wonder Heat Pty. Ltd. v. Bishop [1960] V.R. 489 which, with great
respect, I should not be prepared to follow, if indeed it does purport to lay down
such a principle. I do not think that it does. I should be prepared to accept that the
court which is competent to control the proceedings in the civil action, whether it be
a master, a judge, or this court, would have a discretion, under section 41 of the
Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings, if it
appeared to the court that justice the balancing of justice between the parties so
required, having regard to the concurrent criminal proceedings, and taking into
account the principle, which applies in the criminal proceeding itself, of what is
sometimes referred to as the "right of silence" and the reason why that right, under
the law as it stands, is a right of a defendant in criminal proceedings. But in the civil
court it would be a matter of discretion, and not of right. There is, I say again, in my
judgment, no principle of law that a plaintiff in a civil action is to be debarred from
pursuing that action in accordance with the normal rules for the conduct of civil
actions merely because so to do would, or might, result in the defendant, if he
wished to defend the action, having to disclose, by an affidavit under Order 14, or in
the pleading of his defence, or by way of discovery or otherwise, what his defence is
or may be, in whole or in part, with the result that he might be giving an indication
of what his defence was likely to be in the contemporaneous criminal proceedings.
The protection which is at present given to one facing a criminal charge the so-
called "right of silence" does not extend to give the defendant as a matter of right
the same protection in contemporaneous civil proceedings.
...
Of course, one factor to be taken into account, and it may well be a very important
factor, is whether there is a real danger of the causing of injustice in the criminal
proceedings. There may be cases no doubt there are where that discretion should
be exercised. In my view it would be wrong and undesirable to attempt to define in
the abstract what are the relevant factors. By way of example, a relevant factor
telling in favour of a defendant might well be the fact that the civil action, or some
step in it, would be likely to obtain such publicity as might sensibly be expected to
reach, and to influence, persons who would or might be jurors in criminal
proceedings. It may be that, if the criminal proceedings were likely to be heard in a
very short time (such as was the fact in the Wonder Heat case in the Victoria Supreme
Court) it would be fair and sensible to postpone the hearing of the civil action. It
might be that it could be shown, or inferred, that there was some real not merely
notional danger that the disclosure of the defence in the civil action would, or
might, lead to a' potential miscarriage of justice in the criminal proceedings, by, for
example, enabling prosecution witnesses to prepare a fabrication of evidence or by
leading to interference with witnesses or in some other way. Accepting the existence
of a discretion, I have come to the conclusion that there is nothing which has been
put forward in this case presented, as it has been, with great thoroughness and
diligence by counsel for the defendant which leads to the conclusion that it is either
just or convenient, bearing in mind fully the defendant's "right to silence" in the
15
criminal proceedings, and the reasons for that right, that the civil action should be
stayed, or that the Order 14 proceedings should be adjourned, for what that might be
worth, without the action being stayed."
[27]
The observations in Savage to which the first defenders had drawn attention were
case-specific and not intended to be of general application. It had been a case concerning
casual and negligent omissions to act, whereas the present case was primarily one of
commission in the form of the deployment of deliberate force. The relevant law in relation
to Article 2 for present purposes had been set out in Ramsahai v Netherlands
"[286] The Court reiterates that the exceptions delineated in para.2 of art.2 of the
Convention indicate that this provision extends to, but is not concerned exclusively
with, intentional killing. The text of art.2, read as a whole, demonstrates that para.2
does not primarily define instances where it is permitted to kill an individual
intentionally, but describes the situations where it is permitted to `use force' which
may result, as an unintended outcome, in the deprivation of life. The use of force,
however, must be no more than `absolutely necessary' for the achievement of one of
the purposes set out in sub-paras (a), (b) or (c) (see Our v Turkey (2001) 31 EHRR 40
at [78]).
[287] In this respect the use of the term `absolutely necessary' in art.2(2) indicates that
a stricter and more compelling test of necessity must be employed than that normally
applicable when determining whether State action is `necessary in a democratic
society' under the second paragraph of arts 811 of the Convention. In particular,
the force used must be strictly proportionate to the achievement of the aims set out in
sub-paras 2(a), (b) and (c) of art.2 (ibid.)."
[28]
Those issues bore no real relation to those which would arise in the event of a
prosecution under the 2007 Act, and so no proper basis for the assertion of any real risk of
prejudice to the interests of the first defenders or anyone else.
Decision
[29]
The parties who took an active part in the argument of this motion were in
agreement that the burden lay on the first defenders, as the litigants seeking to have paused
16
the ordinary timetable upon which the action would otherwise proceed, to show sufficient
cause why such a course of action should be adopted. They were also agreed that the court
had a discretion to grant or refuse a motion of this kind; what divided them were the
questions of the identification of the principles upon which that discretion should be
exercised, and of the application of those principles to the facts of the present case. The only
recent Scottish authority touching on these matters which the diligence of counsel had been
able to discover was Rangers FC Group Ltd. In that case the Lord Ordinary had before him
for consideration extant criminal proceedings turning on an indictment which was
susceptible to analysis and which justified the conclusion that the continuation meantime of
active procedure in the civil litigation would pose a risk of prejudice to the administration of
justice in the criminal proceedings to an extent which outweighed the private interests of
those concerned with the civil matter. No question of principle was (at least expressly) dealt
with.
[30]
Against that background, and given that applications for sists of civil actions
pending the resolution of what are said to be related criminal proceedings are by no means
rare, it may be helpful to commence with a statement of what I understand to be the nature
of the relevant principles requiring consideration in this context, particularly since not all of
the observations in the relevant English cases read over very clearly to the Scottish
procedural situation.
[31]
I conceive those principles to be the following:
1.
There is no general rule of law, not even a presumption, that the existence of
live criminal proceedings ought to result in the sist of related civil litigation.
2.
The onus lies on the party seeking a sist in such circumstances to show (on
tangible rather than merely theoretical grounds) that the continuation of the civil
17
litigation poses a specific and real risk of prejudice to the effective prosecution and
conclusion of the criminal proceedings. That will require a careful analysis of the
respective proceedings and the issues which do, or are likely to, arise in each.
3.
A conclusion that there is such a real risk does not in itself justify the sist of
the civil proceedings, but rather is a threshold, the surpassing of which then calls for
a weighing of the public interest in the proper administration of criminal justice
against the same interest in the orderly maintenance of the processes of civil justice,
in each case with reference to the particular processes in question rather than as a
matter of abstraction. This will include, but not be limited to, the degree of the risk
actually posed to the criminal proceedings by the continuation of the civil.
4.
Account should also be taken in reaching a final conclusion as to where the
balance lies of any reasonably-practicable measures which may properly be taken in
either set of proceedings to mitigate or, it may be, eliminate the identified risk.
[32]
In the present case, as matters stand, no person has been charged with any offence
and there is no indictment available for analysis. There may be cases where the prospect of
criminal proceedings is so clear, and their likely nature so obvious, that the absence of
charge, complaint or indictment will not present an insurmountable hurdle to the conclusion
that existing civil proceedings should be sisted on the application of the principles just
noted. In this case, however, it remains entirely unclear whether the current investigation
will reveal a sufficiency of evidence to support a prosecution in respect of any particular
offence or, if it does, whether the second defender will consider it in the public interest for
any such prosecution to be undertaken. It is unknown when matters might be clarified in
these regards; for now, the police investigation continues at a somewhat stately pace.
18
[33]
In these circumstances, any analysis of the issues which are likely to arise in future
criminal proceedings could be no more than speculative in nature. Speculation is not an
adequate ground upon which to reach any conclusion that adherence to the normal
timetable in these proceedings poses any real and specific and risk of prejudice to the
effective prosecution of any crime which may or may not have been committed. The first
defenders accordingly fail to overcome the threshold requirement for consideration of
whether a sist might otherwise have been appropriate.
[34]
Had such consideration required to be given, a particular factor in the weighing of
the balance which would then have had to be struck would have been the nature of this
litigation. As observed by the ECtHR in Boukrourou at [54], Article 2 represents one of the
most fundamental provisions of the European Convention on Human Rights. It is far from
clear that the public interest in the proper prosecution of criminality would outweigh the
need for the provision of a timely and effective remedy by the civil courts in respect of a case
of breach of Article 2 advanced on apparently substantial grounds. Put another way, it
would surpass irony for the resolution of a case complaining, inter alia, of inordinate delay in
the investigation and prosecution of alleged unlawful killing itself to be further delayed in
consequence of an eventual investigation and possible prosecution of the subject-matter of
the same complaint. Even had the threshold test been met in this case, the first defenders
would in any event have faced formidable difficulties in demonstrating that the balance of
the public interests engaged fell to be struck in their favour.
[35]
The identity and attributes of the party seeking the sist would also have required to
be taken into account. While I accept that the privilege against self-incrimination (however
so far that may extend) is enjoyed by a state entity just as much as by a private individual or
corporation, that does not entail that such an entity is in quite the same position as other
19
litigants when it comes to the question of assessment of where the public interest lies in
determining whether or not to sist civil litigation because of related criminal proceedings. A
public authority would be expected, at least in circumstances where only its own interests as
such an authority were engaged, to be by default co-operative and frank in any engagement
with either civil or criminal processes, and so an application for a sist in the circumstances
presently under discussion would be likely to require more cogent justification than might
otherwise be the case. The fact that all employees of the SPS have been given a blanket
immunity from prosecution in respect of the events of 24 March 2015 greatly reduces, if not
indeed eliminates, any weight which might in other circumstances have been accorded to
their private interests. In the event, however, the fact that the threshold test has not been
satisfied in this case obviates the need for any closer examination of such considerations.
[36]
I do not consider that any of the other matters identified in the arguments of parties
has any particular significance for the disposal of the motion. I agree that the onus lies on
the first defenders to explain the events of 24 March, and the relevant background
circumstances thereto, in a manner consistent with due observation of the requirements of
Article 2, but do not accept that that feature of the case places it in any special category for
present purposes. It seems that a question will arise, probably as a preliminary matter,
about the equitable extension of the presumptive one-year time bar, but that simply
underlines, rather than detracts from, the need for early and specific pleading of the first
defenders' position so that the case may proceed in an orderly manner. I finally accept that
the scope for mitigatory measures to be taken in respect of any real risk to the
administration of justice is substantially less in the present case than might pertain in other
circumstances, for the reasons identified by the first defenders, but since it has not been
20
demonstrated that any relevant such risk arises in the first place, that is a matter of no
moment.
[37]
As the first defenders have, for the foregoing reasons, failed to make out a case for a
sist of these proceedings to any extent, I shall refuse their motion in both its branches.
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