|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. Scottish Ministers  ScotCS CSOH_90 (26 May 2011)
Cite as: 2011 SLT 683,  CSOH 90, 2011 GWD 18-439,  ScotCS CSOH_90
[New search] [Context] [Printable version] [Help]
OUTER HOUSE, COURT OF SESSION
OPINION OF LORD BRODIE
in the cause
THE SCOTTISH MINISTERS
Pursuer: Di Rollo Q.C., Divers; Drummond Miller LLP (for Ross Harper, Solicitors, Glasgow)
Defender: Moynihan Q.C., McBrearty; Anderson Strathern LLP, Solicitors
The pursuer is the mother
of the late Catherine Thomson ("the deceased"). On 22 August 2005 the deceased was
murdered by John Campbell. The cause of death was loss of blood from a stab
wound to the right side of her neck which
penetrated the jugular vein. On 22 August 2005 Campbell was serving a sentence of 8 years imprisonment which had been
imposed on 27 August 2002
in relation to two charges of assault to severe injury and permanent
disfigurement. However, on 22 August 2005 Campbell was
temporarily at liberty, having been granted the privilege of short leave from
prison. The murder took place at the home which the deceased shared with the
pursuer in Moodiesburn, Glasgow.
The pursuer now sues the Scottish Ministers who are representing the Scottish Prison Service. She alleges that the death of the deceased was caused by negligence on the part of responsible officers who made the series of decisions that resulted in Campbell being temporarily released from prison on 19 August 2005 for a period which included 22 August 2005. She further alleges that the Scottish Prison Service, in contravention of Article 2 of the European Convention on Human Rights, failed to protect the deceased's life. The pursuer seeks funeral costs, as provided by Section 1(c) of the Damages (Scotland) Act 1976. She also makes a claim under reference to Section 1(4) of the 1976 Act. The defenders have insisted on their general plea as to the relevancy and specification of the pursuer's averments. Accordingly, the issue for determination when the case came before me on the Procedure Roll was whether the pursuer had pled a relevant case for enquiry. The defenders specifically do not take the point that the Scottish Ministers are not responsible for a prison governor exercising statutory powers: Sommerville v Scottish Ministers 2007 SLT 113, Lord Hope at paragraphs 41 to 48 and Lord Rodger at paragraphs 134 to 144. Neither do the Scottish Ministers take any point on time bar under reference to Section 7(5) of the Human Rights Act 1998.
Prisons and Young Offenders (Scotland) Rules 1994
The Prisons and Young Offenders (Scotland) Rules 1994 ("the Rules") provide, inter alia:
"14A. The supervision levels which may be assigned to prisoners in accordance with this Part of these Rules are specified in column 1 of the Table set out below and the description of each level is set out opposite that level in column 2 of the Table:
A prisoner for whom all activities and movements require to be authorised, supervised and monitored by an officer.
A prisoner for whom activities and movements are subject to limited supervision and restrictions.
A prisoner for whom activities and movements are subject to minimum supervision and restrictions, and who may be given the opportunity to participate in supervised or unsupervised activities in the community.
Assigned of supervision levels
14B. -(1) Every prisoner shall be assigned a supervision level in accordance with the provisions of this Part of these Rules.
(2) Subject to the following paragraphs of this rule, a prisoner shall be assigned the appropriate supervision level having regard, so far as applicable, to the following criteria:-
(a) the seriousness of the offence for which the prisoner has been convicted;
(b) the prisoner's previous convictions;
(c) any outstanding charges;
(d) the length of time that the prisoner has spent in custody;
(e) the prisoner's conduct in custody;
(f) the prisoner's trustworthiness and stability; and
(g) any other criteria as may be specified in a direction made by the Scottish Ministers for the purposes of this rule.
(3) Any such direction made by the Scottish Ministers may make provision for the relative importance that is to be given to each of the criteria in determining the assignment of a supervision level, and may make provision as to the form and content of any document that may be required to be completed by the Governor when assigning, or when reviewing the assignment of, a supervision level.
(4) Subject to paragraph (7) below, all prisoners, on reception, shall be assigned high supervision level.
(5) Within 72 hours of reception, the supervision level of all prisoners shall be reviewed in accordance with the provisions of these Rules.
(6) An untried prisoner, or a prisoner who has been convicted but is awaiting sentence, shall be assigned no lower a supervision level than medium supervision level.
(7) On reception, a prisoner who is:-
(a) transferred under paragraph 1 of Schedule 1 to the Crime (Sentences) Act 1997 where the transfer is -
(i) a restricted transfer within the meaning of paragraph 6(1) of that Schedule; and
(ii) has been made for a temporary purpose; or
(b) transferred under paragraph 2 or 3 of Schedule 1 to the said Act of 1997, shall be assigned for the period of the detention a supervision level which, in the opinion of the Governor, is the nearest equivalent to the prisoner's classification in the prison or place in the part of the United Kingdom, the Channel Islands or the Isle of Man in which the prisoner was detained immediately before the transfer took place
(8) Following the review of a supervision level in terms of paragraph (5) above, the Governor shall keep under review and shall formally review within 6 months, and thereafter at least once in every period of 12 months, the supervision level assigned to each prisoner and may, if appropriate, assign another supervision level to the prisoner.
(9) The entitlement of any prisoner who is assigned low supervision level to participate in supervised or unsupervised activities in the community shall be subject to the requirements of rule 91 and of Part 14 of these Rules.
Short leave and winter and summer leave
120.-(1) In this rule -
(a) 'short leave' means temporary release from a prison of a prisoner for the purpose of enabling the prisoner to visit his home or other approved place for a period not exceeding 3 nights excluding travelling time; and
(b) 'winter and summer leave' means temporary release from a prison of a prisoner for the purpose of enabling the prisoner to visit his home or other approved place for a period of up to 5 nights, excluding travelling time, during the winter or summer.
(2) On the application of an eligible prisoner and subject to rule 126, the Governor may grant the prisoner short leave or winter and summer leave if the Governor is of the opinion that, having regard to the relevant criteria applicable to the grant of such leave, it is appropriate to do so.
(3) For the purposes of this rule, a prisoner is an eligible prisoner only if at the time of application the prisoner -
(a) is confined at a prison or in a particular hall or part of a prison to which this rule applies;
(b) is assigned low supervision level; and
(c) is not disqualified from consideration for any reason specified in rule 124(1)....
Direction with respect to temporary release
126. For the purposes of temporary release consisting of any form of leave or release specified in rules 120 to 123, the Secretary of State may specify in a direction (a) the prisons or any halls within particular prisons to which any of those rules applies;
(b) the manner in which the Governor shall consider an application for any such form of temporary release;
(c) the relevant criteria about which the Governor must be satisfied before he may grant any such form of temporary release;
(d) the conditions which may be imposed in relation to any approval of such an application;
(e) the timing and duration of any such form of temporary release and the frequency with which it may be granted to an eligible prisoner; and
(f) the persons who are to be treated as a near relative of the prisoner".
The Scottish Ministers made a direction in terms of Rule 126 on 11 February 2005. The direction included the following:
"3(1) Following receipt of an application for short leave or winter and summer leave in terms of Rule 120 of the Rules, the Governor shall -
(a) check that the prisoner is an eligible prisoner;
(b) obtain such reports as are necessary in order to consider the prisoners suitability for home leave;
(c) obtain a report on the suitability of the premises at which leave is proposed to be taken.
(d) consider whether the criteria applicable to the granting of such leave are satisfied; and
(e) assess the risk that the prisoner may abscond and/or present a danger to the public.
(2) The Governor shall record his decision and the reasons for it in writing.
(4) For the purposes of rule 120(2) of the Rules, the relevant criteria are -
(a) that the reports obtained by the Governor in terms of paragraph 3(1) of the Direction are satisfactory: and
(b) that the prisoners conduct in custody has, in the last six months prior to his application, been of a consistently high standard".
The Pursuer's Averments of Fact
The pursuer avers that the
assaults to severe injury and permanent disfigurement in respect of which Campbell had been sentenced on 27 August 2002 had been committed against his
estranged wife and her friend within his wife's home. At the time of sentence
the trial judge noted in his report that Campbell had 20 court appearances in respect of 36 offences over the
period between 3 December 1987 and 6 July 2001. In particular it was noted that he had been convicted at Glasgow
High Court on 20 January 1998 of an assault and robbery and a contravention of
and (5) of the Firearms Act 1968 and was sentenced to 4 years and
3 years imprisonment concurrently in respect of each offence. That
offence had been committed while Campbell was released on licence in respect of a previous custodial
sentence, which offence itself had been committed on licence. Campbell was released on licence from his
4 year sentence on 8 March 2001.
His licence was revoked on the 8 May 2001 following his appearance at Glasgow Sheriff
Court on charges of breach of the peace and
possession of a lock knife. He was again released on licence on 1 May 2002. On 10 was released he
would be likely to commit serious acts of violence upon members of the public.
Notwithstanding this assessment the pursuer goes on to explain in her averments
that in May 2005 Campbell was
transferred to HMP Friarton, Perth. In July of that year he was transferred to HMP Castle Huntly
which is an open prison. On arriving at Castle Huntly, Campbell applied for short term leave.
This leave would allow him to visit his home or other approved place for a
period not exceeding three days. A prisoner with a low supervision level is
entitled to make such an application. The pursuer avers that if the Rules had
been properly applied to Campbell he would not have been entitled to make such an application. On
receiving such an application the Governor should, inter alia, obtain
such reports as are necessary in order to consider the prisoner's suitability
for leave and assess the risk of the prisoner presenting a danger to the
public. The Governor is supposed to record the reasons for his decision in
writing. On 8 August 2005 the
Governor of HMP Castle Huntly approved Mr Campbell's application for short term
leave. No assessment was carried out by or on behalf of the Governor, which
assessed the risk that Campbell
might pose to the public if released from prison at this time. The Governor
did not record the reasons for his decision to grant leave in writing as he
should have done. Any proper
assessment of the risk posed by Campbell would have found and taken into account that:
(1) He had a history of significant violence, including convictions for firearms offences, assault and robbery, assault to severe injury and permanent disfigurement;
(2) He had issued threats to inflict violence on his victims by letter while in prison;
(3) He was a prolific offender;
(4) He was a diverse offender;
(5) He repeatedly did not comply with legal orders designed to regulate his behaviour and had on numerous occasions breached bail and licence;
(6) There was a significant history of drug offences while in prison;
(7) There was a significant history of substance abuse while at liberty;
(8) The history of substance abuse was relevant to future risk since he was intoxicated when he inflicted violence in the past;
(9) He was persistently unwilling to cooperate with programmes to assist him in particular anger management and problem solving; and
(10) He had attempted to hang himself in or about January 2003.
All of these risk factors were apparent in or about August 2005. No
consideration was given to any other risk factors including mental illness,
personality disorder and psychopathy. If the risk had been assessed as it
should have been it would have been found that there was an unacceptable risk
that Campbell would behave
violently during short term release. Campbell had a positive drug test on 11 August 2005. In light of this
positive test, no reassessment of risk for leave was carried out. On
I was addressed both by junior and senior counsel for each of the parties. Their respective submissions followed the Notes of Argument which had been lodged prior to the debate and to which, together with a written submission which senior counsel provided in the course of the hearing with a view to expediting his presentation, I would refer. The defenders' motion was for dismissal of the action. The pursuer's motion was for allowance of proof before answer. What follows is a summary of what was put forward in support of parties' respective positions.
Defenders' submissions: junior counsel
Junior counsel for the defenders moved for dismissal. He noted that the pursuer made two cases: first, a common case alleging negligence in the series of decisions which downgraded Campbell's supervision level to low, in the decision on 8 August 2005 to grant Campbell temporary release by way of short leave, and in the decision not to revoke the grant of leave when it was reviewed on 18 August 2005 notwithstanding Campbell's positive drug test; and, second, a breach of Article 2 of the European Convention on Human Rights. It was submitted that both cases were irrelevant: the common law case because there was not the requisite degree of proximity as between the defenders and the deceased with the result that no duty was owed and, separately, because the pursuer's averments failed to demonstrate, with proper specification, that the decisions complained of fell outwith the band of decisions open to a discretionary decision-maker; the Article 2 case because the pursuer had failed to aver that at the time of his release Campbell presented a real and immediate threat to life.
starting point for counsel's first line of attack on the common law case was
the decision of the House of Lords in Caparo Industries v
Dickman  2 AC
' proximity' or
and the consideration that it should be fair, just and reasonable that the law
should impose a duty of a given scope upon the one party for the benefit of the
other; but he had acknowledged that it might be necessary to consider
traditional categorisation of distinct and recognisable situations as guides to
the existence, the scope and the limits of the varied duties of care which the
law imposes: Mitchell v Glasgow City Council
 SC (HL) 21. There was no single common denominator, the tripartite test
being one that operated at a high level of abstraction, circumstances and
context were important: Customs and Excise Commissioners v
Barclays Bank plc  1 AC 181, Hines v
King Sturge LLP 2011 SLT 2. The present case was not novel.
It fell within a recognised category of case: the general category being
liability for the deliberate wrongdoing of an independent third party and the
sub-category being liability of a public authority having some degree of
control over the offending third party. That an independent third party caused
the relevant harm was not fatal to a claim against a public authority but there
had to be a sufficient relationship of proximity to establish a duty of care
owed by the public authority to the claimant. Sufficient proximity was
essential. A duty to the public at large was not enough; there had to be
particular circumstances giving rise to an additional degree of risk over and
above that faced by the public at large: Maloco v Littlewoods
1987 SC (HL) 37, Lord Goff at 79. One such circumstance is the
fact that the defender is responsible for controlling the third party where a failure to
exercise that control gives rise to an immediate and obvious risk to the
pursuer: Dorset Yacht Co. Ltd. v. Home Office  AC 1004 at 1034, 1054 and 1068 to 1071, Clerk & Lindsell On Torts (20th
edit) at para 14-43, Charlesworth & Percy On Negligence (12th
edit) at paras 2-88 and 2-304, but to give rise to a duty of care there had to
be a particular risk of harm being inflicted by the third party on the person
to whom it is said that a duty is owed. This is illustrated and emphasised in a
line of cases where the facts were to some extent analogous to the present and
where the principle was applied: Hill v Chief Constable of West Yorkshire Police
be that the pursuer in the present case
could establish a sufficient degree of proximity, regard had to be had to the
fact that what was complained of was a series of decisions made in exercise of
a discretion. For relevancy it was necessary that she offer to prove that the decisions of which she complained were
outwith the range of decisions available to a decision maker in the exercise of
what was a discretion: Dorset Yacht Co. Ltd. v. Home Office supra at
1021 and 1068 to 1069, K v Secretary of State for the Home
Department supra at para 9, X v Bedfordshire County
Council  2 AC 633 at 736 to 737,
Stovin v Wise  AC 923 at 946. The pursuer
therefore had to aver precisely how it was that the decisions that she
criticised fell outwith the ambit of a reasonable exercise of discretion. This
she had failed to do.
The pursuer's Article 2 case proceeded upon the basis that the defenders, as a
public authority, had failed to protect the deceased's right to life. Counsel
for the defenders accepted that in addition to its obligation to refrain from
taking life the state had an obligation to take appropriate steps to safeguard
life within its jurisdiction: Osman v United Kingdom
system for law enforcement but it also required the provision of operational
measures to protect someone whose life was at risk from another. However, not
every threat to life engages Article 2. The obligation on the state to take
preventive action only arises where there is a real and immediate risk to life.
In Osman what was in issue was risk to an identified individual or
individuals. Counsel accepted that in subsequent cases the European Court of
Human Rights had been prepared to entertain applications where the risk was to
the life of members of the public at large: Mastromatteo v
Italy (app. 37703/97) 24 October 2002, and Maiorano v
Italy (app 28634/06) 15 December 2009. In the latter case the
Court had found there to have been a contravention of Article 2 where a
prisoner with a long and significant criminal career, which included abuse of
home leave from prison by using the opportunity to plan the murder of the
president of the court which had the jurisdiction to supervise his sentence,
had been liberated on parole and had murdered the wife and daughter of a fellow
prisoner. However, these post-Osman cases did not depart from the
requirement that there had to be a real and immediate risk to life before the
state fell under an obligation to take operational protective steps. The United Kingdom cases illustrated the
stringent nature of the threshold: Van Colle v Chief Constable of
Hertfordshire supra at 256, 269, 281, Savage v
South Essex NHS Trust  1 AC 681 at 702, Mitchell v Glasgow City Council supra at 24 to 25 and 35. The pursuer's pleadings did not disclose that
at the time of his release Campbell presented a real and immediate threat to life. The high point was the averment, at page
counsel for the defenders finally drew attention to the pending appeal to this
Court from the Sheriffdom of Glasgow and Strathclyde at Glasgow in the case of Kevin
The Chief Constable of Strathclyde Police (now the subject of
an opinion on competency:
where remarks from the bench at a By Order hearing had suggested that that
case, which had some similarities to the present, should have proceeded by way
of judicial review rather than by way of an action for damages for personal
injury: cf Sidey v Clackmannanshire Council
2010 SLT 607. As far as the present action was concerned, the defenders did not
dispute that it was properly raised as an action for damages and accordingly
did not take any point on competency.
[2011 CSIH 16)
Pursuer's submissions: junior counsel
Junior counsel for the pursuer began by noting that there was no challenge as to the foreseeability of Campbell, who was a violent recidivist, acting as he had done. Rather, the argument effectively was that a party in the defenders' position had immunity from suit. Counsel accepted that generally there was no liability for the act of a third party but this was a case where the defenders had had control over the third party and therefore had, by releasing him, created the relevant hazard, a situation equivalent to that in Attorney General of the British Virgin Islands v Hartwell, Mitchell v Glasgow City Council supra, Lord Hope at 29, and Dorset Yacht Co Ltd v Home Office  2 QB 412 Lord Denning MR at 424 to 427. It was counsel's position that it was sufficient for a duty to be owed that Campbell posed an immediate risk to the public at large, by which he meant the public throughout Scotland. Palmer v Tees Health Authority could be distinguished. There the murder had been committed a year after the relevant discharge from hospital. It was a case of pure omission. As was illustrated by O'Dwyer, there will be exceptional cases of a duty being held to be owed to the widest possible class where the risk is both serious and immediate. What brought the present case into the category of being exceptional was that the risk was immediate, it was serious, it was known to the public authority and yet the authority did something (releasing Campbell) which created the hazard. The wide reach of the duty contended for was proportionate to the gravity of the risk: Attorney General of the British Virgin Islands v Hartwell supra Lord Nicholls at 1282. Counsel accepted that there was a line authority from Dorset Yacht, through Hill which did restrict to cases where it could be said that there was an identifiable person or group at risk but, as O'Dwyer and Hartwell demonstrated, there were exceptions. This case was one such.
Turning to the
second line of attack on the common law case, counsel
for the pursuer accepted that it was necessary to show that the decisions
complained of were so unreasonable that they did not fall within the ambit of
the statutory discretions conferred on the officials for whom it had been
conceded for the purposes of this litigation that the defenders were liable.
However, the decisions on Campbell's status were tainted by the erroneous
alteration to medium supervision on 8 May 2003. In terms of paragraph 3
his conduct being of a consistently high standard for the
As far as the Article 2 case was concerned, counsel accepted that in order to found a case of breach there had to be real and immediate risk to life. He also accepted that there was no express averment to that effect. There were however the averments at pages 11D to 12 A, 13C, 15A and 20D, narrating Campbell's criminal history, stating that if released he would be likely to commit serious acts of violence upon members of the public, stating that there was an unacceptable risk that Campbell would behave violently during short term release, and stating that he presented a real and immediate risk of danger to the public.
Defenders' submissions: senior counsel
Senior counsel adopted the submissions of junior counsel. The most relevant test for the existence of a duty of care was that set out in Caparo and endorsed for Scotland in Mitchell. There may be liability for the fault of an independent third party in special circumstances but only where harm is suffered by someone at special risk from the third party. The continuing need for proximity in what counsel referred to as the Dorset Yacht sub-set of cases had recently been affirmed by Lord Brown of Eaton-under-Heywood in Mitchell. This represented a line of House of Lords authority that had consistently applied in the English Court of Appeal and in Commonwealth cases. O'Dwyer was not inconsistent with this line, albeit it was not a case that has been frequently cited in the reports, if at all. The pursuer did not argue that this case law was wrongly decided but contended for an exception where the gravity of the risk supplies the necessary nexus between the pursuer and the defenders. Such an argument had been rejected in Palmer and K v Home Office. Hartwell did not assist as it expressly turned on the fact that providing access to a gun justified widening the class of those to whom a duty was owed. Insofar as the choice lay between the reasoning of Lord Denning when Dorset Yacht was before the Court of Appeal and that of Lord Diplock when the case was in the House of Lords, the latter should be preferred, it having been applied in Hill. Senior counsel relied on what Lord Diplock had said about the risk of violence being shared by the public as a whole and the arbitrariness of allowing compensation for damage caused by a criminal who has escaped from custody but not one who had been lawfully released or one given a suspended sentence or one who was never apprehended at all. Counsel accepted that an element within any custodial sentence was the protection of the public but so was rehabilitation, something which was intended to be promoted by exercise of the option of temporary release: Mastromatteo.
Even if proximity could be demonstrated it was senior counsel's submission that the pursuer had failed to plead a relevant case of wrongful exercise of the statutory discretions to alter supervision levels and grant temporary release. It came to be a point of specification. It was not clear what the pursuer's case was. Nowhere was there any specification of any breach of the law. Any error in May 2003 had been the subject of three subsequent reviews. There was no averment that any subsequent review proceeded on an error of fact. Was it the pursuer's position that Campbell was ineligible for short-term release, or that there had not been a proper exercise of discretion because a material consideration had been left out of account or that the exercise had been wholly unreasonable in a Wednesbury sense? Counsel took no point as to it not being foreseeable that an error in assigning a supervision level would result in harm to a member of the public but, he submitted, the assigning of supervision level aspect of the case was irrelevant, firstly, because it is not averred as to how the decisions in May 2003 and thereafter were contrary to the Rules and, secondly, because the pleadings relied on the error in assigning a medium supervision level in May 2003 but there was no averment as to how subsequent reviews were carried out and therefore as to how the earlier error was carried forward into subsequent reviews. As far as the aspect of the case which related to the decision to grant short-term leave was concerned it was not clear what case the defenders had to meet. There was nothing averred to suggest that in the period of 6 months prior to that decision that Campbell's conduct had been other than of a consistently high standard. As far as the disciplinary hearing on 18 August 2005 was concerned, contrary to the assumption in the pursuer's pleadings there was no statutory requirement for the Deputy Governor to reconsider the previous grant of home leave. There was a lack of specification as to the basis upon which the pursuer asserted that Campbell "would be likely to commit serious acts of violence upon members of the public" if released. The common law case was predicated on an "inadequate risk assessment process". There was no specification as to what would be the content of an adequate assessment. The pursuer's pleadings did not adequately engage X v Bedfordshire County Council, given that a decision in the range of acceptable exercises of discretion cannot be unlawful. It was not enough to say that the defenders did not exercise reasonable care. It was necessary to say that the decisions complained of fell outwith the relevant statutory discretion.
There was no dispute as to the applicable law bearing on the Article 2 case: what was relevant was the Osman test of real and immediate danger. The Osman test did not require danger to an identified individual: Mastromatteo. The operational duty to protect citizens was owed to the public at large but in the absence of real and immediate danger there was no operational duty owed. As appeared from House of Lords cases of Mitchell, Savage and Van Colle, the test meant what it said. It was understandably high. It was no accident that there was no averment in the present case of real and immediate danger. The possibility of violence or even risk to life was not enough. There must be a real, in the sense of objectively justifiable, apprehension of risk to life and it must be immediate. That was not averred.
Pursuer's submissions: senior counsel
counsel's motion was to allow proof with all pleas standing. The argument on
duty of care gave rise to the question as to whether a prison authority could
ever be liable where it takes a positive decision to allow the short-term
release of a violent dangerous prisoner in its custody without proper
regard to the risk that he may during
his release period pose a significant danger of serious
injury or death to a member
of the public. Counsel accepted that there was no reported case where a duty
had been found to exist in similar circumstances other than Couch v Attorney General, but there were particular features of the
present case which supplied such nexus or proximity as was necessary: the
authority was blamed for a positive act not an omission, the decision to
release involved exposing the public to a risk to which they were not otherwise
exposed (at least for the time being) and the authority had a specific
responsibility for the protection of the public. The decision for the court was
whether a right of action arose if a prison authority released a dangerous
prisoner who went on to harm someone who could not have been previously
identified as being at particular risk, either as an individual or as a member
of a particular class. That there should be such a right of action would be
readily understandable to members of the public. A prison authority should only
release prisoners when entitled to do so. Counsel did not say that the
protection of the public was the only consideration when considering early
release but it should be at the forefront of decision-making and here the
defenders did not aver that the reason for releasing Campbell was to do with his rehabilitation. Assigning the appropriate supervision
level was part of the process of protecting the public. The pursuer could not
say that the release of Campbell put any specified individual at risk but
why should this matter? There was, said counsel, a paradox: the wider and in
that sense the greater the risk, the less chance was there of there being held
to be a duty. Could it really be said that deciding on the early release of a
notorious serial killer could never give rise to a duty of care because it was
impossible to identify who might be his future victim? There was no policy
argument put forward by the defenders and no good policy informed a rule which
insisted on the ability to find a relationship of proximity as between such a
dangerous criminal and his eventual victim.
As for what had come to be a criticism of the specification offered in the pursuer's pleadings, counsel did not dispute that the case was of failure properly to exercise discretion but the averments were tolerably clear. They need not be further spelled out. He drew attention to what was said at page 14 of the Record.
Turning to the criticisms of the case of contravention of Article 2, senior counsel accepted that the pursuer would have to prove that the Governor ought to have appreciated "Campbell could well kill someone". Counsel accepted that this was a high test but the pleadings came up to it. Parties were at one as to the case that the pursuer had to make. She should be allowed to do so.
Negligence: duty of care
her pleadings the pursuer points to a series of decisions which for present
purposes are accepted as being the responsibility of the defenders and which
had the result that Campbell
was in Glasgow and at liberty
on 22 August 2005 when he
murdered the pursuer's daughter. As a serving prisoner Campbell was someone whose liberty the defenders were entitled to restrict.
The pursuer can therefore say that the defenders caused her daughter's death in
the sense that but for a series of decisions (or, at least, the later decisions
in the series), each of which she criticises as having been reached without due
care, Campbell would not have
been at liberty and therefore could not have killed the deceased. For present
purposes at least the matter goes further. In the debate before me the
defenders' counsel did not seek to challenge the relevancy of the pursuer's
averments as to the reasonable foreseeability of Campbell making a fatal attack
such as he made on the deceased and no point was taken as to the foreseeability
of an error in assigning a supervision level resulting in harm to a member of
the public. However, a causal relationship between a decision
decisions (or any other sort of act or omission) for which A is
responsible and harm suffered by B does not, of itself, give rise to a
liability on A to make reparation to B. That remains the case even if it can be
said that there was a lack of care in making the relevant decisions and that is
so even if the harm can be said to have been a reasonably foreseeable consequence
of A's act or omission. Where B's harm is caused by A's negligence then there
will be liability to make reparation but, lack of care, by itself, does not
amount to negligence, which is the first of the two bases upon which the
pursuer here seeks damages. The point is made by Lord Macmillan in Donoghue v
Stevenson 1932 SC (HL) 31 at 70:
"The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence."
Later on the same page of the report he goes on:
"The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between parties as to give rise, on the one side, to a duty to take care, and, on the other, to have care taken."
In the speeches of the majority in Donoghue v
Stevenson there is the attempt to enunciate a principle of
general application in order to determine "what circumstances will establish
such a relationship" on the view that, as it is stated by Lord Atkin supra
at 44: "there must be, and is, some general conception of relations giving rise
to the duty of care, of which the particular cases found in the books are but
"The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
As Lord Atkin then explains, the "neighbour" to whom a duty is owed is someone who is in a sufficiently close degree of "proximity" (an expression taken from the judgment of A. L. Smith, L.J in Le Lievre v Gould  1 QB 491 at 504) where proximity is "not confined to mere physical proximity, but ... [extends] to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his act": Donoghue v Stevenson supra at 45. Hence, in Hill v Chief Constable of West Yorkshire supra at 60 Lord Keith said this:
"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present."
In Hill Lord Keith went on to identify, the "further ingredient [which] is invariably needed to establish the requisite proximity of relationship" by reference to a passage in the speech of Lord Diplock in Dorset Yacht Co Ltd v Home Office supra at 1070, which was emphasised in the argument before me:
"To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee's sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public."
The context in which Lord Diplock emphasised the requirement for "some relationship ...which exposes [a] person to a particular risk of damage", an expression which is elsewhere rendered as "neighbourhood", "proximity" or "nexus", before there can be a duty of care owed by the person responsible for an act or omission to a person who suffers damage as a result of that act or omission was that the House of Lords in Dorset Yacht, when affirming the judgment of the Court of Appeal, was innovating on English law as it had previously been understood. As Lord Denning MR had said when the case was in the Court of Appeal ( 2 QB 412 at 426D):
"Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities have been found liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities such as to find a place in the reports."
In a passage immediately preceding the one I have just quoted from his speech in Dorset Yacht Lord Diplock explained why this might be or at least why this was not unjust:
"It is common knowledge, of which judicial notice may be taken, that Borstal training often fails to achieve its purpose of reformation, and that trainees when they have ceased to be detained in custody revert to crime and commit tortious damage to the person and property of others. But so do criminals who have never been apprehended and criminals who have been released from custody upon completion of their sentences, or earlier pursuant to a statutory power to do so. The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all."
And therefore, while Lord Diplock did accept that there was a duty
owed to the plaintiffs in the
the Dorset Yacht case it was
only because of the proximity brought about by these particular plaintiffs
being at special, as opposed to general, risk of harm from the absconding
Borstal boys. Thus while there was a duty owed to the limited group of those at
particular risk of injury, no duty was owed to the wider group which is the
general public. As Lord Diplock put it:
"So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody. I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."
The claim in Hill was at the instance of the mother and personal representative of one the victims of Peter Sutcliffe, the "Yorkshire Ripper". She averred that the circumstances of each of the 20 offences committed by Sutcliffe before the murder of her daughter were such that it was reasonable to infer that all were committed by the same man and further that it was foreseeable that, if not apprehended, he would commit further offences of the same nature. The pleadings went on to allege that it was accordingly the duty of the defendant chief constable and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims. Applying the law as laid down in Dorset Yacht to the circumstances in Hill, Lord Keith said this (at 62):
"The case was
concerned with the special characteristics or ingredients beyond reasonable
foreseeability of likely harm which may result in civil liability for failure
to control another man to prevent his doing harm to a third. The present case
falls broadly into the same category. It is plain that vital characteristics
which were present in the case and which led
to the imposition of liability are here lacking. ... Miss Hill was one of a vast
number of the female general public who might be at risk from his activities
but was at no special distinctive risk in relation to them, unlike the owners
of yachts moored off Brownsea Island in relation to the foreseeable
conduct of the Borstal boys. It appears from the passage quoted from the speech
the law continues to be that a duty of care that might be suggested by
considerations of foreseeability alone will be circumscribed by the additional
requirement of sufficient proximity appears from the formulation of the
tripartite test in Caparo and the affirmation
of that test for Scotland: Mitchell v Glasgow City Council supra at
para 25. At paras 14 et seq of his opinion in Mitchell Lord Hope
considered the contention on behalf of the pursuers that there had been an
operational failure by the defenders in circumstances where it was reasonably
foreseeable that harm would flow to the deceased if they did not warn him about
their meeting with
the man who went on to kill the
]. The pursuers' case
was that there was a duty to warn, and that this duty arose because harm to the
deceased was reasonably foreseeable. Lord Hope set the scene for what follows
in para 15 of his opinion:
"Three points must be made at the outset to
put the submission into its proper context. The first is that foreseeability of
harm is not of itself enough for the imposition of a duty of care (see, eg Dorset
Yacht Co Ltd v Home Office, per Lord Morris of
Borth-y-Gest, pp 1037, 1038; Maloco v Littlewoods Organisation Ltd
(also reported as Smith v Littlewoods Organisation Ltd
pursuer's counsel in the present case took no issue with the propositions that
for the pursuer to have a right of action against the defenders there must have
been a duty of care owed by those for whom the defenders accepted
responsibility to the deceased and that that required a nexus or degree
of proximity which simply being a member of the public resident in Scotland
during the period of Campbell's home leave did not provide.
in a position analogous to that of the plaintiffs in Dorset
Home Office and indeed counsel accepted that
there was no reported case where a duty had been found to exist in
circumstances similar to those founded on here other than the New Zealand case
of Couch v Attorney General.
a rule, derived from the need for proximity, that for there to be a duty of
care to prevent someone being injured by the act of a third party the person to
whom it is owed must be at risk of harm which is in someway special to him and
not simply a risk that he shares with the rest of the public, was not logical.
(negligence was different) should
only arise where the public officer, had he turned his mind to it, could
actually have identified just which person or persons would be harmed. At para
16 of his judgment Sedley LJ put forward two paradigm cases:
"(A) A public official corruptly arranges the liberation of a man serving a sentence for attempting to murder his wife, knowing that he will make a further attempt to kill her if allowed to do so. On his release the man finds his wife and kills her.
(B) A public official corruptly arranges the liberation of a man serving a sentence of imprisonment for terrorist bombings, knowing that he will resume his activities if allowed to do so. On his release the man places a bomb in a public place and kills several people. "
At para 18 Sedley LJ continued:
"Neither defendant's counsel has been able to explain either the logic or justice of making case A actionable and case B not... Mr Blake, for the claimants, submits that if, as is conceded, case A is actionable as misfeasance in public office at the suit of the victim, so must case B be; and in my judgment he is right."
It was Simon Brown LJ (as he then was) who introduced the character of Hannibal Lecter, at para 33 of his judgment:
"Take, too, an example which I myself raised in argument, initially in (a case brought in negligence) and then again in our case: that of the release (negligently or corruptly) of someone like Hannibal Lecter (merely a more extreme case on the facts than here or in K). Why should liability depend not merely on the predictability of harm but on the predictability of who precisely would suffer it? The claim in K necessarily failed because in negligence there remains the need to show proximity (meaning closeness of a relevant kind between the parties) as a separate requirement of the duty of care. I see no good reason, however, to introduce proximity by the back door into the tort of misfeasance."
Neither Sedley LJ nor Simon Brown LJ
thought it logical to impose liability
in office where the released prisoner only presented a risk to his
wife but not when the released prisoner was a terrorist or a serial killer who
presented a risk to the every member of the public. To make
such a distinction where the action was founded on negligence was, Mr Di Rollo
argued, illogical but also paradoxical
in that the greater (in the sense of the more indiscriminate and therefore
involving a greater number of people) the risk posed by the prisoner the less
likely it is that the court will find the necessary nexus or degree of
proximity. Put short, it appeared to be a case of the greater the risk the less
the duty ; the
Hannibal Lecter paradox.
Counsel for the pursuer invited
me to treat this an exceptional case, equivalent to Attorney General of the
British Virgin Islands v Hartwell and O'Dwyer
Chief Constable of the Royal Ulster Constabulary and to find
that the immediacy and severity of the risk, the fact that the risk was known
to the public authority and yet in the
face of the risk the public authority created the relevant hazard by releasing
Campbell (a positive act not an omission), and the fact that the
authority had a specific responsibility for the protection of the public, either
singly or together were sufficient to establish such proximity as was
authorities warn against reliance on statements of principle alone in resolving
the difficulties arising in a particular case where it is claimed that injury
has been caused by negligence. As Lord Mance put it in Customs and Excise Commissioners v Barclays Bank plc supra at para 93: "In my view the threefold test of foreseeability,
proximity and fairness, justice and reasonableness provides a convenient
general framework although it operates at a high level of abstraction...
Incrementalism operates as an important cross-check..." And in Caparo itself,
Lord Bridge, having formulated the tripartite test, immediately added the
qualification (supra at 618): " But it is implicit in the passages referred to that
the concepts of proximity and fairness embodied in these additional ingredients
are not susceptible of any such precise definition as would be necessary to
give them utility as practical tests, but amount in effect to little more than
convenient labels to attach to the features of different specific situations
which, on a detailed examination of all the circumstances, the law recognises
pragmatically as giving rise to a duty of care of a given scope. Whilst
recognising, of course, the importance of the underlying general principles
common to the whole field of negligence, I think the law has now moved in the
direction of attaching greater significance to the more traditional
categorisation of distinct and recognisable situations as guides to the
existence, the scope and the limits of the varied duties of care which the law
imposes. We must now, I think, recognise the wisdom of the words of Brennan J.
in the High Court of Australia in , 43-44, where he said:
'It is preferable, in my view, that the law
should develop novel categories of negligence incrementally and by analogy with
established categories, rather than by a massive extension of a prima facie duty of care
restrained only by indefinable
'considerations which ought to
negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed.'
What I take from that is if the law of
negligence is to be kept "within the bounds of common sense and practicality",
to use Lord Oliver's expression in Caparo supra at 633, logical symmetry
may not always be possible. "'Proximity'", as Lord Oliver went
on to explain, "is, no doubt, a convenient expression so long as it is realised
that it is no more than a label which embraces not a definable concept but
merely a description of circumstances from which, pragmatically, the courts
conclude that a duty of care exists." The safest way forward, at least for a
judge sitting at first instance, is to examine previous decisions and to
compare the circumstances of the case before him with those that have gone
before with a view to determining where his case fits within the spectrum of
authorities. Encouraging me to avoid the Hannibal Lecter paradox and relying
particularly on Hartwell , O'Dwyer and Couch,
that is what I understood Mr Di Rollo invited me to do. Having followed
Mr Di Rollo's invitation, it appears to me that when the cases which have
similar features to the present are examined they do not support the view that
the circumstances here provide sufficient proximity as to establish a duty of
care owed by those for whom the defenders have accepted responsibility and the
deceased. In my opinion the pursuer's case is irrelevant because she is unable
to bring the deceased and those for whom the defenders are responsible into the
relationship of proximity necessary for there to be a duty of care and that is
clear on the authorities.
The facts in Hartwell were that a police officer employed by
the Royal Virgin Islands Police Force, having abandoned his post, entered a
crowded bar where his partner worked as a waitress and, in a fit of jealous
rage at finding her there with another man, fired four shots at her with a
police service revolver which he had taken from the police
to which he had access in the course of his duties. The claimant, a tourist who
was in the bar at the time, was seriously injured. He claimed damages for
negligence against the Attorney General, representing the Government of the British Virgin Islands, relying on evidence
of two earlier incidents as demonstrating that the officer, who was still at
the probationary stage of his career, was not a fit and proper person to be
given access to firearms. Upholding the judgment of the Eastern Caribbean Court
of Appeal, the Privy Council held that a duty of care was owed to the claimant;
and that, in view of the relaxed and surprisingly casual response of senior
officers to the two earlier incidents involving
the officer, there had been a sufficient breach of that duty to found liability
in negligence. The critical factor in finding there to have been a duty was the
long recognition by the law of the special dangers associated with articles
such as loaded firearms, explosives and poisons. This was stressed by Lord
Nicholls in giving judgment:
"36 Thus, where an article as dangerous as a loaded gun is handed over the class of persons to whom the duty of care is owed is wide and the standard of care required is high...
39 ...If this duty seems far-reaching in its scope it must be remembered that guns are dangerous weapons. The wide reach of the duty is proportionate to the gravity of the risks."
was also a policeman with a firearm case, albeit that the firearm was a privately
held shotgun. The policeman in question, a constable in the RUC by name of Moore,
"It is possible to see the necessity for it in a case of failure to exercise reasonable care in carrying out a duty where such failure could affect a very wide class of people. There must necessarily be some limit on the ambit of potential liability, and it has been created by prescribing the existence of a special relationship. It seems to us that it may not be required in the present case. Once it is established that the circumstances gave rise to a duty on the part of the police to take some steps to prevent Moore from endangering other people, the class of people at risk consisted of those whom he might meet or seek out in the course of a relatively limited period. We are not satisfied that it is necessary to limit it any further."
O'Dwyer has not been widely cited, so Mr Moynihan informed me. He did not, however, suggest that it had been
wrongly decided. That Moore was
described as being in a deranged state of mind might have taken the case out of
the category of cases where the injury is caused by the act of an independent
third party exercising free will. That is not the ratio of the case.
Rather, the Court, with what can be taken to be a very full understanding of
the narrow temporal, spatial, social and political parameters within which
Moore was operating, took the view that class of
people at risk and the time over which they were at risk
limited to make it arguable that a relationship of proximity existed. If I am
wrong about that then O'Dwyer probably simply has to be explained in
terms of its very particular circumstances and the procedural stage at which it
was at, where the test was the relatively modest one of arguability. At all
events it does not support the proposition that risk to the general public,
even grave risk, is enough to satisfy the requirement of proximity.
is a decision of the Supreme Court of New Zealand
and, as such, commands the
highest respect. I question how helpful the majority
opinion is to the pursuer's position. Again the
question of sufficiency of proximity was raised on a motion to strike out.
Pleadings had not been finalised. The action was based on failures on the part
of the Probation Service in its placement and supervision of a parolee named
Bell, at the instance of an employee at a place where Bell had been allowed to
work, who was injured during a robbery committed by the parolee and accomplices
during which three other members of staff were murdered. The Supreme Court was
unanimous in holding that the claim should not be struck out a
disclosing no duty of care but it split on how proximity would have to be
established at the subsequent trial. For the minority, consisting of Elias CJ
and Anderson J, whether there was sufficient proximity turned on a broad
inquiry into the facts. It was important that the Probation Service was
discharging statutory obligations. Elias CJ said this, at para 64 et seq
"... For ourselves, we would be prepared
to allow that proximity sufficient to give rise to a duty of care can arise by
reason of statutory obligations and powers, particularly in the circumstances
identified by Mason J [in Sutherland Shire Council
Heyman supra] where individuals cannot take steps for their own
protection or where social conditions have led individuals to rely on
fulfilment of statutory responsibilities. That is consistent with the New Zealand authorities.
... We accept that proximity between a statutory body and a plaintiff who has suffered harm is not readily to be assumed whenever statutory duties and powers could reasonably have been used to avoid foreseeable loss. But the statutory obligation is we think highly relevant to the judgment of sufficient proximity between plaintiff and statutory authority to give rise to an actionable duty of care. And in some cases, particularly those where individuals cannot reasonably protect themselves from risk which a statutory body has a duty to abate or manage, we consider that sufficient proximity may well follow from the statutory obligations...
The scope of those to whom the Probation Service might ultimately be liable will be relevant in any final determination of whether there is a duty of care. As indicated, we do not think that the authorities compel the view that duties of care can be owed only to those who are members of a limited class. It is in the nature of public functions that those foreseeably at risk if statutory responsibilities are discharged negligently will be a wide class, perhaps as wide as the general public if the responsibilities are imposed for public protection (as the duties imposed by the upon the Probation Service explicitly are) and if the risk warrants it. ... Although duties of care may be expressed as being owed by manufacturers to consumers for defective products, by public authorities to road users for highway hazards, by local councils to owners and occupiers of houses for building defects, by the police to 'young people' at risk from a paedophile, these 'categories' effectively amount to recognition of duties to the whole world. But, at least in the case of physical harm, it is only those who come within the vicinity of the hazard who will be harmed and who may have a claim. In principle, therefore, we do not see a decisive impediment to proximity in the breadth of the class to whom the Probation Service might owe a duty of care in the supervision of a parolee. If the Probation Service is shown to have acted below the standard reasonably to be expected and that want of care is causative of loss, it is not immediately clear that the plaintiff should not be able to claim as a member of the public if she suffers harm, if the public generally is foreseeably at risk and the harm not too remote. Much will depend on the nature of the risk and whether it is significant enough to import the necessary relation."
What Elias CJ said about the significance of an authority having a statutory obligation to protect the public and gravity of the risk found an echo in Mr Di Rollo's submissions on behalf of the pursuer. On the significance of such a statutory obligation I have not discerned a similar echo in the United Kingdom authorities and, as I shall mention, I would see the argument that proximity can be supplied simply by the gravity of the risk to have been rejected in K v Secretary of State for the Home Department supra. Moreover, the majority in Couch was only prepared to find the existence of a duty of care owed by the Probation Service to be arguable on the basis that the plaintiff was subject of a distinct and special risk of suffering the kind of harm that she sustained at the hands of Bell. As Tipping J put it on behalf of the majority at paras 112 and 113:
"[Counsel for the plaintiff] accepted the general tenor of the 'special risk' approach. Indeed he invoked it in support of his argument for a duty of care. The general principle deriving from the cases is a sound and well established one for determining proximity in cases where the harm suffered by the plaintiff is immediately caused neither by the defendant nor by a person for whom the defendant has vicarious liability. The probation officer and the Department did not owe Ms Couch any duty of care simply because she was a member of the public. To establish a duty of care Ms Couch must demonstrate that, either as an individual or as a member of an identifiable and sufficiently delineated class, she was or should have been known by the defendants to be the subject of a distinct and special risk of suffering harm of the kind she sustained at the hands of Bell. The necessary risk must be distinct in the sense of being clearly apparent, and special in the sense that the plaintiff's individual circumstances, or her membership of the necessary class rendered her particularly vulnerable to suffering harm of the relevant kind from Bell. If the necessary special and distinct risk can be established the plaintiff will thereby have demonstrated the proximity criterion for the imposition of a duty of care. It then becomes necessary to examine policy issues to determine whether they militate against the imposition of a duty, despite proximity having been established. If the necessary special and distinct risk cannot be established there will be no proximity and therefore no need to examine policy issues, because without proximity there can be no duty of care."
Although pleadings had not been finalised the majority was of the opinion that an arguable case could be pleaded that Ms Couch was the subject of the necessary distinct and special risk of being physically harmed by Bell. The relevant facts were outlined at para 124:
"The defendants knew that Bell was classified as posing a high risk of reoffending. [The offence for which he had originally been convicted] was arguably marked by a particularly dangerous and unusual feature in the form of what appears to have been an attempt by Bell to inflict gratuitous and random violence on a person present at the robbery scene. Bell was known to be in constant need of money to feed his alcohol addiction. He was allowed to work at premises in which significant amounts of cash in the form of bar takings were likely to be present. He was able, while engaged on the premises, to find out about the security systems and arrangements which were in force. His ability to do this made [these] premises a predictable target for any further robbery he might be minded to commit. Hence anyone who might be present in the premises at the time of such robbery was at greater risk than members of the public generally and those present were particularly vulnerable because Bell had exhibited a tendency to commit random violence during a robbery."
although Mr Di Rollo drew attention to Couch as
case which he took to be analogous where inquiry had been allowed on the basis
of an allegation of a duty of care having been owed by a custodial authority to
someone who was simply a member of the public and who had been injured by a
prisoner granted conditional release, the judgment of the majority of the Court
does not really bear that construction. The majority was careful to emphasise
the need to demonstrate the need for a special risk to a member of the context
where the facts pointed to a quite specific link, known to the custodial
authority, as between the victim and the released prisoner.
The other antipodean case which I was asked to look at was New South Wales v Godfrey supra, an action at the instance of a first plaintiff who had been the victim of an armed robbery committed by a prisoner who had escaped from a state-run gaol some ten weeks previously. She suffered nervous shock and gave birth prematurely to the second plaintiff who suffered certain disabilities consequent on his premature birth. The leading judgment of the New South Wales Court of Appeal was given by Spigelman CJ. That judgment, with which the other members of the Court concurred, includes extensive citation of both Australian and English authority. Applying Dorset Yacht, it concluded that there was no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol. On consideration of a variety of factors it further concluded that no duty should be recognised.
I was also referred to Palmer v Tees Health Authority supra and K v Secretary of State for the Home Department supra.
Palmer was an action at the instance of a mother whose young child had been killed by a man, Armstrong, who had, some months previously, been in receipt of psychiatric care from the defendant health authority. She sued on her own behalf in respect of nervous shock and as executrix of her dead child. She alleged that the defendant had failed to diagnose that there was a real, substantial and foreseeable risk of Armstrong committing serious sexual offences against children and of causing serious bodily injury to any child victims. As a consequence, it had failed to provide any adequate treatment for Armstrong to reduce the risk of him committing such offences, and/or to prevent him from being released from hospital or some other appropriate institution whilst he was at risk of committing such offences. As with the present case, the murder victim had no closer connection with the murderer than any other member of the public. Counsel for the plaintiff had argued that proximity was satisfied if there was reasonable foreseeability. It was not necessary to have an identified or identifiable victim. It was sufficient if injury of the type sustained was reasonably foreseeable. The Court of Appeal upheld the decision to strike out the claims. Pill LJ recognised that the requirement to have an identifiable victim before there could be a duty of care was not entirely satisfactory. He observed, supra at 108D et seq:
"I see force in the submission that the question whether the identity of a victim is known ought not to determine whether the proximity test is passed. It is forcefully argued that the difference between the threat 'I will kill X' and the threat 'I will kill the first bald-headed man I meet' ought not to determine whether a duty is placed upon a defendant, though it would obviously go to the extent of the duty and the measures necessary to discharge it. ...[However] Dorset Yacht and Hill are in my judgment binding authority for the proposition that, in circumstances such as the present, the identity of the victim is an important factor in deciding whether the foreseeability test is passed. That being so, I agree with Stuart-Smith L.J. that, upon the facts of this case, [the murder victim] does not pass the threshold requirement of the proximity test necessary to establish a duty of care and that the decision to strike out on that ground was correct."
In K the plaintiff had been raped by an illegal immigrant, Rashid Musa, who had been detained but then released by the Home Secretary. Her case in broad terms was that the Secretary of State released Musa into the community when he knew or should have known that he was a very dangerous individual, liable to commit crimes of sexual violence; he ought to have kept him in detention until he could be deported. She argued that where to the knowledge of the defendant the risk posed is especially grave, that circumstance can of itself supply a nexus between claimant and defendant sufficient to create a duty of care. Law LJ (at para 29) rejected that proposition as contrary to principle:
"A defendant does not become the world's insurer against the grave danger (where the danger is general) posed by a third agency, which he might control but does not, by virtue only of the fact that he appreciates that the danger exists."
Arden LJ agreed (as did Simon Brown LJ (as he then was)). At para 35 she said:
" ... The need to show proximity (meaning
closeness of a relevant kind between the appellant and the respondent) is a
separate requirement of the duty of care, which cannot be established simply by
showing the knowledge on the part of the respondent of a glaring danger to the
public as a result of Mr
Negligence: exercise of discretionary power: specification of breach of duty
series of decisions under attack were made in terms of discretion conferred by
I did not understand to be controversial that the applicable
that set out by Lord
Browne-Wilkinson in X v Bedfordshire County Council at 736:
'Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.'
in order to succeed the pursuer must establish that the decisions she
criticises fall outside the limits of a reasonable exercise of discretion. The
defenders' argument came to be one which founded on absence of specification as
to why it was said that this was so. Mr Di Rollo for the pursuer submitted that
the pursuer's averments were
tolerably clear. I would agree. It appears to me that the critical averment is
that, contrary to the mandatory
Direction 3 (1) (e) issued by the Scottish Ministers on 11 February 2005, the
Governor of HMP Castle Huntly approved Campbell's application for short term
leave without any risk assessment whatsoever. That of itself, if proved, would
seem to have the result that the decision to allow Campbell leave was unlawful. Accordingly I would not have refused the pursuer's
averments probation had I taken a different view on the existence of a duty of
Article 2 of the European Convention of Human Rights
parties were agreed as to the law applicable to this branch of the case. Osman
United Kingdom remained as a principal authority from the European Court of Human
Rights but its scope had been extended by the Court's decisions in Mastromatteo
28 Article 2 of the European
Convention provides, in paragraph (1):
right to life shall be protected by law. No one shall be deprived of his life
intentionally ..." According to
what has become a conventional analysis, this provision enjoins each member
state not only to refrain from the intentional and unlawful taking of life ("Thou
shalt not kill ") but also to
take appropriate steps to safeguard the lives of those within its jurisdiction:
certain well-defined circumstan ces", imply
a positive obligation on national authorities to take preventative measures to
protect an individual whose life is at risk from the criminal acts of another.
29 In Osman , para 116, the court defined the circumstances in which the obligation arises:
'it must be established to [the court's] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
Every ingredient of this carefully drafted ruling is, I think, of importance."
Thus, on the authority of Osman for the state's operational responsibility to be engaged, the risk must be to life, it must in respect of an identified individual or individuals and it must be real and immediate.
Mastromatteo v Italy, what was in issue was "the
obligation to afford general protection to society against the potential acts
of one or of several persons serving a prison sentence for a violent crime and
the scope of that protection": supra at para 69. The applicant's son, A
Mastromatteo, had been shot dead by MR who had just robbed a bank with two
accomplices, GM and GB, and was being pursued by the police. Mr Mastromatteo
had been driving a car which had crossed the robbers' path. The robbers had
attempted to take control of the car. When Mr Mastromatteo tried to accelerate
away, he had been shot at point-blank range. At the time of the robbery GM was
serving a prison sentence of 15 years and 7 months for attempted murder, armed
robbery and other offences but had been allowed leave from prison and then
failed to return on the due date. GM had been convicted of aiding and abetting
armed robbery and other offences. At the time of the shooting of Mr
Mastromatteo he was serving his sentence in a semi-custodial regime under which
he worked outside prison
Until the decision in Mastromatteo, the Court had gone no further than finding there to be such an obligation where there was a risk to the life of an identified individual or individuals. However, in Mastromatteo albeit without finding it necessary to engage in much by way of discussion, the Court was prepared to take a further step. Thus, at para 74:
On the facts, the Court in Mastromatteo found there to have
been no breach of Article
on the basis that, distinguishing Osman
and following Mastormatteo the case was "to do with the obligation to
insure a general protection of society against the possible actions of a person
condemned to be imprisoned for violent crimes." However, the finding proceeded
on "a certain and immediate threat to life of which [the national authorities]
were or should have been aware" (Maiorano supra at para
killer in Maiorano had originally been sentenced to life without parole
for crimes described of being of exceptional cruelty. Thereafter his conduct
was, as the Court observed, "far from irreproachable" (supra at para
117): in 1977 he attempted to escape from prison by taking a prison guard
hostage, in 1978 he committed crimes concerned with drugs, in 1983 he was found
in possession of a knife, in 1993 he escaped and obtained false identity
papers, a gun, ammunition and cash, in 1996 he declared to a prison guard that
if he came in contact with a fellow prisoner he could not be responsible for
his actions, and in 2003 he broke the terms of a temporary release. In 2004
a grant of partial
an informer disclosed to the public prosecutor that the killer was preparing to
commit a murder and other serious crimes and to set up a drugs operation.
In the present case it is averred, at page 20 of the Record, that Campbell was violent and dangerous. There is reference to the history and pattern of his offending prior to conviction and to the risk factors which are set out at page 14 of the Record. It is averred that on that basis that the Scottish Prison Service knew that "he posed a real and immediate risk of danger to the public." What is not averred is a real and immediate risk of the death of a member of the public, and having regard to what else appears in the pleadings (which may be taken to be informed by the findings of the Fatal Accident Inquiry into the death of the deceased) it is difficult to see how that might responsibly be averred. In my opinion the case insofar as based on breach of Article 2 of the European Convention on Human Rights is irrelevant.
The action falls to be dismissed.