Outer House refuses to sist civil action arising from death of man in prison service custody

About this case:

• Citation:
  [2024] CSOH 82
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

The deceased, Allan Marshall, died in March 2015 as a result of a brain injury four days after being restrained by prison officers. His aunt Sharon MacFadyen brought a claim in terms of section 7(1) of the Human Rights Act 1998 in respect of the defenders’ alleged failure to comply with their obligations under that Act.

The case was considered by Lord Sandison. McBrearty KC appeared for the pursuer and Reid KC for the first defenders. The lord advocate, though represented, adopted a neutral position in relation to its disposal, while the chief constable did not appear and was not represented.

Criminal charges

In broad outline, the pursuer’s case was that the prison officers who restrained Mr Marshall failed to comply with their obligations under Article 2 ECHR by using force on him which was not absolutely necessary nor proportionate, and separately by failing to ensure any risk to his life was minimised. The first defenders were ultimately responsible in law for the actions of the prison officers, while it was alleged that the other defenders failed, and were continually failing, to carry out an official investigation into Mr Marshall’s death.

A Fatal Accident Enquiry was held by Edinburgh Sheriff Court in 2018, which concluded the following year that Mr Marshall’s death had been entirely preventable. It was also acknowledged that since at least March 2023 Police Scotland, at the direction of the second defender, had been investigating the possibility of criminal corporate responsibility by the SPS, either in respect of corporate homicide or an offence under the Health and Safety at Work etc Act 1974.

The first defender maintained that the action should be sisted prior to their being required to lodge defences, on the basis of avoiding prejudice to the proper administration of justice. Lodging a defence would require them to state a position on criminal charges which might be brought against them or others, and there was a near total overlap between the grounds relied upon in the present case and what would have to feature in any prosecution. In the event that the court was not persuaded to sist the case as a whole, it was invited to sist it so far as it concerned the first defenders.

On behalf of the pursuer it was submitted that a decision to grant immunity to individuals employed by the SPS had been made in May 2015. Although the Crown now accepted that certain expert evidence rendered that decision incorrect, it could not be revoked. There was no rule of law that actions should be sisted to give priority to related criminal proceedings, it was a matter for the court’s discretion, and any trial would likely be years away. The only relevant Scottish case, Rangers FC Group Ltd v Joint Liquidators of RFC 2012 plc (2017) had been decided on its facts and contained no statement of principle.

No more than speculative

In his decision, Lord Sandison began by dealing with the Rangers FC case: “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.”

He went on to say: “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.”

Assessing what this meant in the circumstances of the case, Lord Sandison said: “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.”

He concluded: “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.”

The first defender’s motion to sist was therefore refused in both its branches.