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||Neutral Citation Number:  EWHC 2248 (QB)
||Case No: HQ07X00140
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||3 September 2010
B e f o r e :
THE HON. MR JUSTICE SUPPERSTONE
|| CHRISTINA MORGAN
(on her own behalf and as administratrix of the estate of
(by her mother and litigation friend CHRISTINA MORGAN)
||- and -
||MINISTRY OF JUSTICE
Paul Bowen and Alex Gask (instructed by Messrs Bhatt Murphy) for the Claimants
Oliver Sanders (instructed by The Treasury Solicitor) for the Defendants
Hearing dates: 19-22 July 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Supperstone :
- This claim arises out of the self-inflicted death, by hanging, of Karl Lewis ("the Deceased") on the night of 21/22 January 2005 while in the custody of HM Young Offender Institution Stoke Heath, Shropshire ("Stoke Heath"). The Deceased, who was born on 29 August 1986, was 18 years old at the time of his conviction, sentence and death.
- The claim is for damages and declaratory relief and the causes of action are:
i) In negligence under the Law Reform (Miscellaneous Provisions) Act 1934 ("LR(MP)A"), s.1 and under the Fatal Accidents Act 1976 ("FAA"), s.1; and
ii) Under the Human Rights Act 1998 ("HRA"), ss.6-8 (alleged breach of s.6(1) by virtue of conduct incompatible with Convention rights under ECHR, Arts.2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life).
- By order dated 12 February 2010 Master Leslie directed that there be a separate trial of the following three preliminary issues ("the issues"):
"1. Liability of Defendants for relevant acts and omissions
Whether and, if so, to what extent the Secretary of State for Justice and/or the Ministry of Justice owed a direct, non-delegable duty of care to the Deceased at common law to ensure that reasonable care was taken by any or all of the entities or individuals referred to at paragraph 7 of the Amended Particulars of Claim in the discharge of their functions and in connection with the prison and probation systems and the matters complained of in the Amended Particulars of Claim.
2. Status and liability of the Crown under HRA
Whether the Crown is a "public authority" for the purposes of the Human Rights Act 1998, s.6 and can be held liable under ss.6-8 of that Act for the acts or omissions of any or all of the entities or individuals referred to at paragraph 7 of the Amended Particulars of Claim.
3. Capacity of Claimants to bring pleaded claims under HRA
Whether and, if so, to what extent the First Claimant acting in her own right, the First Claimant acting as the administratrix of the Deceased's estate and/or the Second Claimant acting by her mother and litigation friend is capable of bringing proceedings against and recovering damages from the Ministry of Justice, the Secretary of State for Justice and/or the Crown under the Human Rights Act 1998, ss.6-8 in respect of the matters alleged in the Amended Particulars of Claim and, in particular satisfying the 'victim' test in the Human Rights Act 1998, s.7 for the purposes of such a claim."
- None of the issues requires the resolution of any disputes of fact. Where facts are not agreed, for the purposes of the trial of the issues the parties agree that the Court should assume the Claimants' version to be correct (or capable of being proved correct) and express its ruling accordingly, except in relation to the issue at paragraph 6 below, in which the Court is invited to give a ruling on two alternative factual bases.
- The First Claimant is the administratrix of the Deceased's estate and (she avers) his fiancée. She is not a "dependant" within the meaning of FAA, s.1(3) because she was neither married to the Deceased nor living with him for two years prior to his death. She is the mother of the Second Claimant, born on 13 January 2005, who, the Claimants aver, is the daughter and only child of the Deceased and the beneficiary of his estate.
- The Defendants do not admit that the First Claimant was the Deceased's fiancée or that the Second Defendant is his child. For the purposes of the third issue the Court is asked to rule on alternative bases. In relation to the First Claimant, the Court is asked to rule, first, on the assumption that she was the fiancée of the Deceased and, second, on the assumption that she was merely in a relationship with the Deceased. In relation to the Second Claimant, the Court is asked to rule on the basis, first, that she is the Deceased's biological daughter and, second, that although she is not biologically the Deceased's daughter, she has been brought up on the understanding that she is.
- The Home Office was, at the material time, the Department of State responsible for prisons and probation, including the Probation Service and the Youth Justice Board, under whose aegis Youth Offending Teams ("YOTs") are organised in each local authority area, including (materially) in the Borough of Telford and Wrekin. Since May 2007 (and the events that are the subject of this claim) the First Defendant, the Ministry of Justice, has assumed the above-mentioned responsibilities (and any liabilities arising therefrom) and is now the authorised Government Department for the purposes of the claim in tort. Accordingly, the proceedings have been amended to name the Ministry of Justice as the First Defendant, rather than the Home Office.
- In connection with the first issue, Mr Bowen, for the Claimants, during the course of his oral submissions and in his written Reply contended for a non-delegable duty of care owed by either or both the Secretary of State for Justice, or the Governor of the prison; it is owed, he submits, by the Secretary of State who directed the Deceased's detention in Stoke Heath and by the Governor who was the custodian of the Deceased and, he further submits, the First Defendant may be held vicariously liable in respect of any breach of either or both duties. It is not necessary for the determination of the issues for there to be a formal amendment to the Pleadings.
- The Second Defendant, the Crown, is sued under the HRA as (it is alleged) a "public authority" liable for the acts or omissions of any servant, agent or other person or entity empowered to exercise public functions.
- The claim is brought by the First Claimant, first, on behalf of the Second Claimant (as the Deceased's dependant and beneficiary of his estate) in her capacity as administratrix of the Deceased's estate under FAA, LR(MP)A and HRA, s.7; and secondly, in her own right under HRA, s.7. The claim is also brought by the second claimant in her own right under HRA, s.7 with the First Claimant acting as her litigation friend. The Claimants seek declaratory relief and/or damages and/or compensation under HRA, s.8 for pecuniary and non-pecuniary loss suffered as a result of the acts and omissions of the Defendants, their servants or agents.
- So far as concerns issues one and two, it is the Claimants' claim, in essence, that the Deceased's death was avoidable. As for the claim in tort, the Claimants allege the Deceased's self-inflicted death was foreseeable and the First Defendant and/or its employees and/or the Governor breached their duties of care by failing to take reasonable measures that would or could have altered the outcome or mitigated the harm; and as for the HRA claim, the Claimants allege that it was known or ought to have been known that the Deceased was at a real and immediate risk of self-inflicted death and that reasonable measures were not taken which would or could have had a real prospect of altering the outcome or mitigating the harm. These claims are disputed by the Defendants. The Defendants accept that they are responsible for the acts and omissions of their employees, including Stoke Heath prison officers and nurses. They do not accept that they are responsible for the other individuals and bodies involved, specifically the doctors and probation staff. At the outset of the hearing Mr Bowen made clear that the first issue is now limited to the acts and omissions of the doctors, and that the claim in respect of probation staff is not pursued in relation to the first issue.
- In this regard, the Claimants say:
(1) The claim in tort
If the Secretary of State for Justice or the Governor owed a direct, non-delegable duty to the Deceased at common law to ensure that reasonable care was taken in connection with all aspects of the administration and management of the prison system generally and his custody at Stoke Heath in particular, then the First Defendant can be held liable for any negligent acts on the part of any doctors working in the establishment or communicating with the establishment even if it did not employ them; and
(2) The HRA claim
If the Crown is a "public authority" for the purposes of HRA, s.6 and if it can be held liable thereunder for the acts and omissions of other domestic public authorities, then the Second Defendant can be held liable for any breaches of Convention rights on the part of the public authorities and/or healthcare providers mentioned above. More fundamentally, the approach to be taken (the Claimants aver) is to consider the acts and omissions of all the various individuals and bodies and to determine whether, collectively, they give rise to a breach of Convention rights.
- The Defendants deny the existence of any direct, non-delegable duty of the kind asserted by the Claimants and aver that the First Defendant may only be found vicariously liable in respect of torts committed by its employees i.e. Stoke Heath prison officers and nurses, and not in respect of torts committed by non-Crown bodies, their servants or agents e.g. doctors.
- The Defendants likewise deny that the Second Defendant may be held liable for the acts or omissions of any or every servant, agent or organ of the State and aver that HRA, ss.6-7 confer a duty on and a right of legal action against individual public authorities separately.
- So far as concerns the HRA claim and issue three, the First Claimant alleges that she may rely on allegations of conduct that was incompatible with the Convention rights of the Deceased acting as the administratrix of his estate (i.e. under LR(MP)A) and both Claimants allege that they may rely on such allegations acting in their own right as individuals with (allegedly) close ties to the Deceased.
- In this regard, the Defendants aver that neither Claimant is or was a "victim" of any such incompatibility for the purposes of HRA, s.7 and therefore that neither Claimant may bring the HRA claim against and/or recover damages from the Defendants in their own right.
- The factual background to the claim is set out in an Agreed Case Summary and Statement of Facts prepared for the purposes of the trial of the issues. In so far as they are material for the determination of the issues they can be summarised as follows:
i) On 8 October 2004 the Deceased was sentenced to six years' imprisonment and was sent to Stoke Heath. This was the Deceased's first prison sentence.
ii) At the time of sentence the Court had available to it a pre-sentence report ("PSR") dated 30 September 2004 prepared by William Stephens, a probation officer seconded from the West Mercia Probation Service to the Shropshire, Telford and Wrekin YOT, which concluded that the Deceased was at "low risk of causing harm to himself…". Mr Stephens also completed a Core ASSET form, dated 30 September 2004, in which he recorded that the Deceased had not deliberately harmed himself. Both the PSR and the Core ASSET form were passed to Stoke Heath at the time of the Deceased's admission.
iii) These documents did not accurately reflect the Deceased's self-harming history. He had a documented history of self-harming behaviour prior to his remand into custody which was contained in his social services records and in the records held by the YOT, albeit that he had not previously attempted to commit suicide.
iv) At the time of sentencing the Deceased made threats that he would harm himself which were recorded by probation staff at Shrewsbury Crown Court and a "Suicide/Self-harm" warning form was opened.
v) Upon the Deceased's admission to Stoke Heath, an F2052SH "Self-Harm At Risk Form" was opened. The Deceased was then given a "First Reception Health Screen" by a mental health nurse, Nurse Sandra Douglas, to whom he disclosed he had self-harmed in the past. He was referred to the Health Care Centre with a direction that he be reviewed by the GP the following morning. The following morning he was seen by the GP, Dr Geoffrey Willis of the Ellesmere Medical Practice, who discharged him to normal wing location. The first F2052SH form was closed four days later, on 13 October 2004.
vi) The Claimants aver that the screens carried out by Nurse Douglas and Dr Willis were not adequate, appropriate and/or reasonable assessments of the risk, in particular because neither Nurse Douglas nor Dr Willis obtained a detailed history from the Deceased, took steps to obtain the Deceased's social services records, YOT records or other relevant records, interviewed or arranged to be interviewed the Deceased's family members or other individuals who had been professionally involved with him in the past, nor did they refer the Deceased for a full psychiatric assessment.
vii) The Defendants do not admit these matters and, in any event, they dispute that they can be responsible for the acts or omissions of Dr Willis. Between April 2003 and April 2006, responsibility for the provision of health care services in prisons and Young Offender Institutions in England was transferred from HM Prison Service to the NHS. At the material time in January 2005, primary health care services were provided at Stoke Heath by the Shropshire County Primary Care Trust ("PCT") and, in particular, the Ellesmere Medical Practice ("the Practice"). The doctors from the Ellesmere Medical Practice (including Dr Willis) were not therefore employees of the Defendants but they worked in partnership with prison nurses who were.
viii) The Deceased's progress on the wing was not good. He made further threats to harm himself and he also disclosed further details of his self-harming history. In consequence of this a second F2052SH form was opened on 26 November 2004, which remained open until 15 December 2004. On 11 December 2004 he was transferred to "B" Wing, the "Healthy Living" wing. A third F2052SH form was opened a week after the second had been closed, on 22 December 2004. The Deceased was referred to the prison GP, Dr Huluya Alaca, who recorded "No thoughts of self harm. Done it in the past. Tells staff if there are any thoughts of self-harm. Safe to go back to wing. Needs better visitation rights."
ix) The Claimants aver that Dr Alaca did not obtain an adequate history, did not conduct a reasonable assessment and examination of the Deceased and was not qualified to do so and failed to refer the Deceased to a qualified psychiatrist. The Defendants deny that allegation and aver that they are not, in any event, liable for her acts or omissions.
x) The third F2052SH was closed on 29 December 2004.
xi) On 13 January 2005 the Second Claimant was born. The Claimants visited the Deceased on 20 January 2005. The meeting was a very emotional one and the Deceased was initially very hostile and aggressive, preoccupied by the fact that he was not named on the birth certificate as the father. Matters calmed down to the extent that photographs were taken of the three together.
xii) On the following day, 21 January 2005, the Deceased was reported as having behaved strangely, on one occasion gesturing to another inmate that he was going to hang himself. At paragraphs 4.17-4.20 of the Parties' Agreed Case Summary material events leading up to the discovery by Single Officer Support Grade ("OSG") Knowles at 12.40 a.m. on 22 January 2005 that the Deceased had hanged himself, are recorded.
xiii) The Claimants aver, in their draft re-amended Particulars of Claim, that had OSG Knowles immediately entered the cell to render assistance, rather than raising the alarm and waiting for other officers to arrive, there was a real prospect that the Deceased's death could have been averted. However this matter and other matters referred to at paragraph 4.22 of the Parties' Agreed Case Summary are not relevant to the resolution of the issues, as it is accepted by the First Defendant that it is responsible for the acts and omissions of prison officers.
xiv) A post-mortem was carried out on 25 January 2005. Dr Tapp, a consultant pathologist at the Home Office, concluded that the cause of death was "vagal inhibition". An inquest took place before Mr JP Ellery, HM Coroner for Shropshire Mid and North Division, and a jury between 5 and 13 October 2006. The jury's verdict was that the Deceased hanged himself, intending to take his life.
- I shall deal with each of the three issues in turn.
Issue 1: Liability of Defendants for relevant acts and omissions
- Mr Bowen, for the Claimants, puts forward three core propositions in support of his submission that the First Defendant was directly responsible for the alleged acts and omissions of Dr Willis and Dr Alaca:
i) First, a non-delegable duty of care has been held to arise in three analogous contexts: employment, schools and hospitals. The principled basis for the existence of a non-delegable duty of care includes where a tortfeasor assumes responsibility for an individual who is in special need of care. The relationship between gaoler and prisoner is the paradigm of such a relationship of control and vulnerability.
ii) Second, a positive obligation to protect a prisoner from a real and immediate risk of self-harm or suicide of which the prison is or ought to be aware already exists under Article 2 of the ECHR. The principled basis for that positive obligation is the same as that which underpins the existence of a non-delegable duty of care, namely a relationship of control and vulnerability. No such positive obligation exists in relation to hospitals other than where a patient is detained (for example, under the Mental Health Act 1983). It would be anomalous if the common law were to go further in the protection it affords to hospital patients than the Convention, but not to go as far as the Convention in the protection it provides to prisoners, when the principled basis for the existence of a duty of care/positive obligation is materially indistinguishable.
iii) Third, applying the tripartite test in Caparo v Dickman  2 AC 605 the harm is foreseeable, there is a sufficient degree of proximity, and it is "fair, just and reasonable" to impose a non-delegable duty of care.
- Mr Bowen agrees with Mr Sanders, for the Defendants, that:
i) The negligence proceedings against the First Defendant are "civil proceedings against the Crown" for the purposes of the Crown Proceedings Act 1947 ("CPA"), s.23 and the First Defendant is therefore the Crown sued nominally as "the Ministry of Justice" under CPA, s.17.
ii) The Crown cannot be held liable in tort other than under the CPA.
iii) The Crown cannot owe a direct, non-delegable duty in tort as the only relevant tortious duties it owes are vicarious in respect of the acts and omissions of its servants or agents, as set out in CPA s.2(1)(a). None of the other duties imposed by CPA, s.2(1)(b)-(c) or s.2(2) apply in the present case.
iv) The Crown can only be vicariously liable for its servants or agents who are "officers" of the Crown within the meaning of CPA, s.2(6) and 38(2) (see Claimants' Written Reply, para 1).
- However Mr Bowen takes issue with Mr Sanders:
i) That because the Crown cannot itself owe a direct non-delegable duty of care it follows that there is no cause of action against it in negligence; nor can the duty be owed by the Secretary of State or the Governor;
ii) That the Crown or its servants or agents can only be liable for the wrongful acts of their subordinates if it can be proved they authorised or sanctioned their actions;
iii) That a non-delegable duty of care is precluded by statute;
iv) That in any event it is unjustifiable to impose a non-delegable duty of care (see the Claimants' Written Reply, para 2).
- Mr Bowen acknowledges that a non-delegable duty of care between prisons and prisoners has not previously been recognised and therefore the court is being asked to establish its existence. However he suggests that the court would be doing no more than extending the present law. He submits (1) if a non-delegable duty of care arises in the context of employment, schools and hospitals because the nature of the relationship is such as to involve an assumption of particular responsibility for those in special need of care, a fortiori it should arise in the context of a prison; (2) it would be anomalous, and irrational, not to extend the non-delegable duty of care to include prisoners, given that the Strasbourg and domestic courts have acknowledged they fall into a particularly vulnerable group that warrant the special protection of Article 2; and (3) in all the circumstances it is fair, just and reasonable to impose a duty of care on the First Defendant.
- In my judgment, it is not a question of extending existing law, rather it is an attempt to create new law, which is not permitted by CPA, s.2.
- CPA, s.2 provides, so far as is material, as follows:
"2. Liability of the Crown in tort
(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-
a. in respect of torts committed by its servants or agents;
b. in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and
c. in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:
Provided that no proceedings shall lie against Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a course of action in tort against that servant or agent or his estate.
(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.
(3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.
(6) No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund of the United Kingdom, moneys provided by Parliament, … or any other fund certified by the Treasury for the purposes of this subsection or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid."
- I accept Mr Sanders' submission that the effect of CPA, s.2 is to make the Crown subject to liability in tort in respect of Her Majesty's Government in the UK to much the same extent (subject to certain limitations and savings) as if it were a private person of full age and capacity. S.2(1)(a) and (3) are concerned with vicarious liability and provide that where a servant or agent of the Crown commits a tort in the course of their official duties, they and the Crown will be jointly and severally liable. Primary liability is envisaged under s.2(1)(b)-(c) and (2) only in relation to breaches of (1) actionable common law duties owed by an employer to his servants or agents (s.2(1)(b)); (2) actionable common law duties owed by owners and occupiers of property (s.2(1)(c)); and (3) actionable statutory duties cast directly, but not exclusively, upon the Crown and its officers whether as an employer, a proprietor or otherwise (s.2(2)).
- The non-delegable duty contended for by the Claimants does not fall into any of these categories and so it cannot arise or exist as a matter of common law. S.2(1)(a) or (3) are not engaged because the proposed liability of the Crown for breach would not be a species of vicarious liability. S.2(1)(b) is not engaged because, if the alleged duty existed, it cannot be said to be owed by the Crown to its servants or agents by reason of its being their employer. S.2(1)(c) is not engaged because, if the alleged duty existed, it cannot be said to attach to the ownership, occupation, possession or control of property. S.2(2) is not engaged because the alleged duty is not alleged to arise under statute, and even if it were, it would not be owed by anyone other than the Crown and its officers. Finally, any exception to the proposition that the Crown may only be held liable in tort under CPA, s.2 that may arguably arise in connection with the enforcement of directly effective Community law rights is not relevant in the present case.
- In my view the limitations on the imposition of direct duties of care on the Crown (CPA, s.2(1)(b)-(c) and (2)) and the prohibition on liability being found against the Crown in respect of any act, neglect or default of an officer of the Crown not paid out of central Government funds (CPA, s.2(6)), also reflects a clear Parliamentary intention to preclude claims against the Crown in respect of the acts and omissions of non-Crown bodies.
- At the material time primary care medical services were being provided to Stoke Heath by the PCT, through the Practice. The terms and conditions of the service being provided by the Practice to Stoke Heath on behalf of the PCT are set out in Heads of Agreement for the period January 2004 to March 2005.
- The Department of Health had assumed budgetary responsibility for healthcare services in public sector prisons in England with effect from 1 April 2003 and the transfer of this responsibility to the NHS was being "rolled out" between April 2004 and April 2006 by way of delegations to Primary Care Trusts ("PCTs"). This delegation was effected by the transfer of the Secretary of State for Health's responsibility under the NHS Act 1977, s.3 (now the NHS Act 2006, s.3) to PCTs by way of directions under the NHS Act 1977, s.16D (now NHS Act 2006, s.7). The relevant directions are contained in the NHS (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002. By NHS Act 1977, Sch.5A, para 18 "A Primary Care Trust is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and a Primary Care Trust's property is not to be regarded as property of, or property held on behalf of, the Crown." (See now NHS Act 2006, Sch.3, para 2). Further, the NHS Act 1977, Sch.5A, para 13(1) provided that "any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a Primary Care Trust of any function exercisable by it by virtue of section 16B or 17A above are enforceable by or (as the case may be) against that Trust (and no other health service body)." (See now NHS Act 2006, Sch.2, para 16(1)).
- Even if CPA, s.2 did not bar the imposition of the non-delegable duty for which the Claimants contend, I do not accept that the Claimants have shown that the creation of such a duty can be justified by reference to precedent or principle.
- Mr Bowen submits that if a non-delegable duty of care arises in the context of schools, employment and hospitals because the nature of the relationship is such as to involve an assumption of a particular responsibility for those in special need of care, a fortiori it should arise in the context of a prison. In support of this submission and in search of a principled basis for the non-delegable duty for which he contends Mr Bowen refers to the judgment of Mason J in the Australian High Court in Kondis v State Transport Authority (1984) HCA 61, paras 26-32 where he says:
"… When we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. …
The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care… In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
- Mr Bowen also relies on the reasoning of Lord Phillips MR (as he then was) in A (A Child) v Ministry of Defence  1 QB 183 which involved a claimant, the partner of a British soldier, who sought to argue that the MoD had a non-delegable duty of care rendering it liable for the negligence of a German doctor in a German hospital that had contracted with a PCT to provide medical care to British troops stationed in Germany. Lord Phillips decided that the MoD was not under a non-delegable duty of care because "the MoD is no longer in the business of treating patients in hospital in Germany. Its sole role is that of arranging for such treatment to be provided by others" (para 55). However Lord Phillips was attracted by the argument that "a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment" (para 63).
- In Farraj and Another v King's Healthcare NHS Trust and Another  EWCA Civ 1203 the Court of Appeal assumed, without deciding, that a non-delegable duty of care can arise between a hospital and a patient that it treats, although it did not do so on the facts of the case (see para 88, per Dyson LJ).
- Mr Bowen submits by reference to prisoners that the degree of control exercised over them and their particular vulnerability is the foundation for the recognised duty of care in their case. As Lord Rodger observed in Savage v South Essex Partnership NHS Foundation Trust  1 AC 681 (in the context of a discussion as to the existence of a positive protective obligation under Article 2, but whose comments Mr Bowen says are equally apt to the question of whether a non-delegable duty of care should apply at common law):
"When the court said that prisoners are in a vulnerable position, it was only stating the obvious: unable to get away, they are vulnerable to being assaulted or even murdered by a fellow inmate (e.g., Edwards v United Kingdom (2002) 35 EHRR 487), to being bullied, to being blackmailed, to being subjected to sexual abuse etc. Usually the danger will come from other prisoners but sometimes, it will be from rogue prison officers. The situation is aggravated by the fact that many prisoners suffer from some form of mental disorder which may affect their ability to look after themselves. Moreover, while the prison authorities are not obliged to regard all prisoners as potential suicide risks…, the risk of suicide is known to be higher among prisoners than among the equivalent population at large. …" (para 28).
- However in my view the three situations relied upon by the Claimants as being analogous to the present situation do not assist them. The employment relationship is not relevant. The duty of care in schools which in Australia has been recognised as non-delegable has not been extended to police or prison custody in Australia or followed in the English courts. The hospital cases are to be distinguished. Mr Sanders accepts that prisoners are in a vulnerable position and that prison staff owe them special duties of care at common law as a result. However the Defendants were in the same position as the MoD in A (A Child) v MoD, they were "no longer in the business of" providing the healthcare services in question (see Lord Phillips MR at para 55). At the material time they did not have the requisite "control" over the provision of medical services by the prison doctors following the transfer of prison healthcare from Stoke Heath to the PCT. The Defendants owed the Deceased a duty to provide access to primary healthcare services within Stoke Heath and it is not alleged that they failed to do this.
- The second reason put forward by the Claimants in support of their argument that a non-delegable duty should exist in the present circumstances is that a special duty towards those deprived of their liberty has been recognised in the Strasbourg jurisprudence (see Keenan v United Kingdom (2001) 33 EHRR 913). In Savage the crucial factor determining the existence of the operational duty under Article 2 owed to a psychiatric patient was the fact that she was detained (per Lord Scott at paras 11-12). Contrast Rabone and Rabone v Pennine Care NHS Trust  EWCA Civ 698); and in Savage Lord Rodger (para 29) discussed the factors that prisoners and military conscripts had in common that justified extending the protective obligation:
"The cases on prisoners and conscripts suggest that the court sees Article 2 as imposing an obligation on the State to take appropriate practical measures to prevent them committing suicide because they are under the control of the State and placed in situations where, as experience shows, there is a heightened risk of suicide…"
- However there is nothing in the Strasbourg jurisprudence that favours or requires the imposition of a non-delegable duty as opposed to a duty of the kind already imposed at common law (see Orange v Chief Constable of West Yorkshire Police  QB 347 at paras 42-44; and Lister v Hesley Hall Ltd  1 AC 215 at para 55, per Lord Hobhouse). The common law distinction between delegable and non-delegable duties does not appear in the ECtHR cases.
- The Claimants' third reason for the non-delegable duty contended for is that in all the circumstances it is fair, just and reasonable to impose such a duty. Two principal arguments are put forward. First, that while the Claimants, and others in their situation, can usually sue the doctors or other individuals with whom the prison has contracted for the provision of their services, that will not always be the case. Private providers may go into liquidation. In any event suing another defendant is an expensive and time-consuming option where, as here, the failures of the doctors are only part of the overall picture where other prison service staff are also responsible for failings. Second, it is not fair, and is not realistic, to suggest to a prisoner during his custody that legal responsibility for him does not lie with the Ministry of Justice or the Governor, under whose authority his liberty is constrained and controlled at all times.
- In my view the prospect of a healthcare provider going into liquidation depriving claimants of the remedy is remote. Further, the suggestion that a non-delegable duty might "make life easier" for a would-be claimant is not "axiomatic" (per Lord Phillips MR in A (A Child) v MoD, para 56).
Issue 2: Status and Liability of the Crown under HRA
- The Claimants contend that the Crown is a "public authority" for the purposes of HRA, s.6 and can be held liable under ss.6-8 of that Act for the acts or omissions of Doctors Willis and Alaca and certain other bodies referred to at paragraph 7 of the Amended Particulars of Claim. Mr Bowen submits that where liability cannot be established against an identifiable public authority, s.6(1) must be interpreted so as to identify some public authority as representative of the "State" to whom responsibility for any acts and omissions that would give rise to liability under the Convention may be imputed. That public authority, the Claimants submit, is the Crown. Although the Crown is not responsible outside the HRA for the acts and omissions of all other public authorities, the HRA has, it is said, brought about "a profound constitutional shift" (Claimants' skeleton argument, para 53(5)) and is to be construed so as to impose such a responsibility in order that the liability of the State under the Convention is mirrored domestically under the HRA.
- In support of his primary submission Mr Bowen puts forward five principal propositions. First, under the Convention, the Strasbourg organs apply the doctrine of State responsibility, whereby the High Contracting Parties are responsible for the acts and omissions of all State agents. Under Article 1 of the Convention "the state's parties are responsible for securing that all bodies exercising governmental power within their jurisdiction respect the relevant rights and freedoms" (Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another  1 AC 546, per Lord Rodger at para 159). The State and the governmental organisations for which it is responsible are treated as one and indivisible. In considering the acts and omissions of a range of governmental bodies the ECtHR does not determine whether, individually and in isolation, those acts or omissions were in and of themselves a breach of a Convention right, rather its approach is to identify all of the failings and then to consider whether, globally, those failings constitute a violation (see, for example, Moldovan and others v Romania (2007) 44 EHRR 16, and Paul and Audrey Edwards v United Kingdom (2002) 35 EHRR 19 at para 64).
- Second, under the HRA the approach taken is to extend the reach of the Convention rights to apply to all "public authorities", which has been interpreted by the domestic courts to include all those bodies for which the "State" would be responsible under the Convention in Strasbourg. In Aston Cantlow Lord Nicholls explained:
"6. The expression 'public authority' is not defined in the Act, nor is it a recognised term of art in English law, that is, an expression with a specific recognised meaning… So in the present case the statutory context is all important. As to that the broad purpose sought to be achieved by section 6(1) is not in doubt. The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights. …"
- Third, unless the Claimants can sue the "State" under HRA, s.7 there is a substantial risk that the Claimants' claims will fail because there is, in the present case, a multiplicity of "public authorities" each of which, through its acts and omissions, may have contributed to a breach of Convention rights by the "State" but may not, seen individually and in isolation, have been responsible for a violation of those rights. Thus they will be deprived of a remedy that they would be entitled to if pursuing their claim before the ECtHR in Strasbourg.
- Fourth, it is a fundamental principle of the HRA that an aggrieved individual must be able to obtain the remedy in the domestic courts that he would be able to obtain in Strasbourg, unless the HRA expressly excludes it. The HRA must be interpreted consistently with that principle, if necessary by employing s.3 of the Act. Accordingly where liability cannot be established against an identifiable public authority s.6(1) must be interpreted so as to identify some "public authority" as representative of the "State" to whom responsibility for any acts and omissions that would give rise to liability under the Convention may be imputed. Parliament had a single "central purpose" in enacting HRA, ss.6 and 7, namely:
" '… to provide a remedial structure in domestic law for the rights guaranteed by the Convention': Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, 564, para 44, per Lord Hope of Craighead. In other words, claimants were to be able to obtain remedies in United Kingdom courts, rather than having to go to Strasbourg. …
…In case of doubt the Act should be read so as to promote not so as to defeat or impair, its central purpose." (per Lord Rodger in Al-Skeini, paras 56 and 57).
- Fifth, the public authority that is to assume the responsibility of the "State" is the Crown. This is so for three reasons:
i) The Crown is a "public authority" for the purposes of HRA, ss.6-8.
ii) In determining whether it has acted "incompatibly" with an individual's Convention rights for the purposes of s.6(1) the Crown can be held responsible for the acts and omissions of other public authorities. That is because it is to be treated as the domestic analogue of the "State" and is therefore responsible in domestic law for the same public authorities for which it is liable under the Convention. It is accepted that as a matter of purely domestic law certain of the ancient immunities of the Crown remain, even if such immunities are not available to its servants – such as immunity from injunctive relief (R v Secretary of State for Transport ex p Factortame (No.1)  2 AC 85); from prerogative remedies (M v Home Office  1 AC 377); and from damages claims for breach of public law duties (Bourgoin SA v Ministry of Agriculture, Fisheries and Food  QB 716). However the HRA is not to be construed in accordance with those common law principles. For the purposes of the law of the European Community/European Union and the European Communities Act 1972 ("ECA") the concept of the Crown as the embodiment of the State has been more fully developed. None of the traditional immunities from suit survive so claims for all forms of relief, including interim relief and damages, may be brought against the Crown and the Crown is liable, as the embodiment of the State, for any breach of EC/EU law by other public authorities. The court should apply the same approach to that which has been adopted in EC/EU law.
iii) The common law limitations on the powers of the courts to award damages and to grant injunctions against the Crown outside the terms of the CPA should not apply to claims under the HRA and a court may make awards of damages and grant injunctions against the Crown under HRA, s.8(1) and with one exception (the absence of a power to strike down incompatible primary legislation) the rights arising under the HRA are of the same order as those under the ECA. The Claimants contend that the concept of the Crown as the embodiment of the State must now be fully developed for the purposes of determining the Crown's liability as a public authority under s.6(1).
- One problem with the Claimants' primary submission is, as Mr Bowen recognises, that in R (Noorkoiv) v Secretary of State for the Home Department  1 WLR 3284 Buxton LJ expressed the view that in the domestic courts it is not possible to bring an action against the State under the HRA (paras 28-30), referring to his remarks to that general effect made in his earlier judgment in R (K) v Camden and Islington Health Authority  QB 198, paras 47-51.
- Mr Bowen submits that Buxton LJ's remarks in Noorkoiv were obiter. However an appreciation of the fundamental difference between the Convention and the HRA makes clear why they are correct. In Wilson v First County Trust Ltd (No.2)  1 AC 816 Lord Hobhouse examined the structure of the HRA. He said:
"The Act does not simply say … that the provisions of the European Convention 'shall have the force of law'. Its approach is more subtle. It has a limited definition of 'Convention rights': section 1. It requires courts in determining a question in connection with a Convention right to 'take into account' judgments of the European Court of Human Rights and other cognate material: section 2. It thus, at the outset, draws a distinction between the international obligations of the United Kingdom under the Convention and what are to be the municipal law obligations of the three organs of the State, the executive, the legislature and the judiciary. So far as the Convention is concerned such distinctions are in principle irrelevant. If the provisions of the Convention have been broken, the relevant state is in breach and no further analysis is required. The Act, on the other hand, follows a scheme which recognises that the role of the judiciary is to apply and enforce the 'convention rights' municipally, treats the executive branch of government, in the form of any public authority, as being civilly liable for any breach of the 'Convention rights' on its part and makes their offending conduct unlawful, and recognises that laws passed by the legislature may be incompatible with a 'Convention right'. Each of the three aspects of government are treated differently in the Act (though not in the Convention)." (para 126)
- He continued at para 130:
"Subject to certain qualifications, section 6(1) makes it unlawful for the executive to act in a way that is incompatible with a 'Convention right' and section 7(1) empowers any victim of such unlawful conduct (or the threat of it) to take civil proceedings against the relevant authority or rely upon the 'Convention right' in legal proceedings. This, as regards the emanations of the executive, i.e. public authorities, creates legal liabilities and, for the citizen, legal rights."
- Similarly, and most importantly for the purposes of the present argument, in In Re McKerr  1 WLR 807 Lord Hoffman said at para 63:
"It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law. In R v Secretary of State for the Home Department, ex p Brind  1 AC 696 and R v Lyons  1 AC 976 are two instances of its affirmation in your Lordships' House. That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg."
(See also Lord Nicholls at paras 25 and 30; Lord Steyn at para 48; and Lord Rodger at paras 74-75).
- Mr Bowen submits that at the time Buxton LJ made his observations in Noorkoiv the House of Lords had not yet affirmed the principle set out in R (Al-Skeini) v Secretary of State for Defence  1 AC 153. He relies, in particular, on the speech of Lord Rodger where he says that Parliament had a single central purpose in enacting HRA, ss.6 and 7 which was to ensure that "claimants were to be able to obtain remedies in UK courts, rather than having to go to Strasbourg" (para 56), and that "the Act should be read so as to promote, not so as to defeat or impair its central purpose" (para 57). (See also Baroness Hale at para 88, Lord Carswell at para 96, and Lord Brown at para 138).
- In my view the speeches in Al-Skeini cannot be read as bringing about the "sea-change" that Mr Bowen suggests. There is no departure in Al-Skeini from the approach to the HRA or its objects as identified in Wilson v First County Trust Ltd and In Re McKerr in the passages set out at paras 47 to 49 above (see Lord Bingham in Al-Skeini at paras 4, 8-10, 12 and 14 on statutory construction). Indeed Lord Bingham (at para 10) expressly approved what Lord Nicholls and Lord Hoffman said in In Re McKerr. If Lord Rodger had intended at paras 56-58 to depart from what he said in In Re McKerr, only three years earlier, one would have expected him to have said so. Moreover there is a material distinction between what was being urged on the court in Al-Skeini and what is being contended for in the present case. The issue in Al-Skeini was the extra-territorial effect of the HRA. The issue here is not with the content of rights but with whether there is an effective remedy and proper redress for breach of the HRA. However Article 13 of the Convention (Right to an effective remedy) has been deliberately excluded from Schedule 1 to the HRA.
- Mr Sanders accepts that the Crown is capable of being a public authority within the meaning of HRA, s.6(1) (see Defendants' second skeleton, para 18.3). Mr Bowen accepts that on the ordinary reading of the words of HRA, ss.6-8 there must be more than one public authority. It follows that the Crown cannot be the only public authority, and therefore there must be some limit on the circumstances in which proceedings can be brought against the Crown as opposed to some other public authority. S.7(1) must be read consistently with that principle, so, he says, that it is only in those circumstances where an individual cannot identify a public authority against whom he can obtain a remedy that he should be permitted to bring a claim against the Crown. He suggests that "that can be done by employing the principle in Al-Skeini that the HRA must be construed in accordance with its underlying purpose, the necessary limiting words arising by necessary implication" (para 32 of Claimants' Written Reply). In my view there is nothing in Al-Skeini that enables the Claimants to achieve the objective they seek.
- In the alternative Mr Bowen submits HRA, s.3 can be used to read in words to qualify s.7(1). However he accepts that he would be using "s.3 HRA to interpret s.7 HRA to allow the Crown to be sued in order to obtain a remedy" (para 33 of Claimants' Written Reply). In my view this is not permissible. The Claimants complain that their inability to sue the Crown or the State in the circumstances they identify will deprive them of an effective means of seeking redress at the national level. This is in essence an Art.13 complaint. However the "right to an effective remedy" in ECHR, Art.13 was intentionally excluded from the definition of "the Convention rights" in HRA, s.1(1) which contains its own provisions as to remedies in sections 4 and 8.
- I reject Mr Bowen's submission that the Crown can be sued under HRA in the circumstances envisaged based on EU law where the Crown is liable, as the embodiment of the State, for any breach of EU law by other public authorities. The European Communities Act 1972 expressly incorporated the law of the EU into British law. By section 2(1) "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…". There is no comparable provision in the HRA in relation to the Convention. The rights created by the Convention are not themselves enforceable in domestic law (see paras 47-49 above).
- I accept Mr Sanders' point that the Claimants' submission overlooks the relevance of the principle that applicants must exhaust their domestic remedies before pursuing States at the international level (see ECHR, Art.35). In Aksoy v Turkey (1997) 23 EHRR 553 the European Court of Human Rights said at para 51:
"… States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights."
- In my judgment the Crown cannot be sued under HRA in the circumstances envisaged by the Claimants. Mr Bowen's sixth proposition was that public policy reasons support the Claimants' interpretation (see para 114 of the Claimants' skeleton argument). No public policy reasons put forward by the Claimants affect this interpretation of "public authority" for the purposes of HRA, s.6.
Issue 3: Capacity of Claimants to bring pleaded claims under HRA
- The Defendants dispute whether the Claimants are entitled to be treated as satisfying the "victim" test in HRA, s.7. The Defendants do not admit that the First Claimant was the Deceased's fiancée or that the Second Claimant is his child. In relation to the First Claimant I will rule on the basis (1) that she was the fiancée of the Deceased, and (2) that she was merely in a relationship with the Deceased. In relation to the Second Claimant I will rule on the basis (1) that she is the Deceased's biological daughter, and (2) that although she is not biologically the Deceased's daughter, she has been brought up on the understanding that she is.
- HRA, s.7(1) provides that a person may bring a claim in respect of any act that is unlawful under s.6(1), but "only if he is (or would be) a victim of the unlawful act." S.7(7) states that "for the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act." The text of Article 34 of the Convention provides no guidance as to the meaning of "victim". It merely states: "The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."
- The Claimants allege that they were each the victim of violations of the Deceased's Convention rights under ECHR, Arts.2 and 8 in their personal capacities. The Defendants submit that any award of damages by way of just satisfaction under HRA, s.8 and ECHR, Art.41 for any such breach of the Deceased's Convention rights cannot be made to the Claimants in their personal capacities and may only be made to the Deceased's estate through the First Claimant acting in her capacity as administratrix.
- The Defendants' primary submission is set out at para 10.1 of their first skeleton argument. It is that:
"… The decisions of the ECtHR demonstrate that it will only treat the applicant in an Art.2 case arising out of the death of another as a 'victim' and award them compensation in three key types of circumstance.
(1) Where the relevant breach of Convention rights comprised a State failure to discharge the procedural investigative obligation under Art.2 and/or there was a related breach of Art.13 (see e.g. Kaya v Turkey (1999) 28 EHRR 1, para  and Jordan v United Kingdom (2003) 37 EHRR 52, paras -);
(2) Where the applicant's Convention rights were separately infringed, e.g. through treatment connected with an investigation which amounted to inhuman or degrading treatment contrary to Art.3 justifying compensation in their personal capacity (see e.g. Orhan v Turkey (App. No. 25757/94) (judgment of 18 June 2002), para. ); or
(3) Where the relevant breach of Convention rights comprised a State killing or failure to protect life contrary to Art.2 and the applicant effectively proceeded on behalf of the deceased in a representative capacity (rather than a personal capacity) and compensation was only justified on the basis that it amounted to an award to the estate of the deceased and the award was therefore made on the basis that it be held for the estate or the heirs of the deceased."
- Mr Sanders submits that the European Court of Human Rights applies a narrower, stricter victim test in connection with claims for compensation under Art.2 in respect of alleged breaches of the substantive obligations thereunder (i.e. the negative obligation not to take a life and the positive obligation to protect it), than it does in connection with claims of the same kind alleging breach of the procedural investigative obligation thereunder (i.e. the positive obligation to investigate deaths where agents of the State may be implicated). That distinction is made, he says, for very sound policy reasons: a more flexible, inclusive approach to the victim test is justified when the concern is with the effective investigation of a death (procedural Art. 2 claims), but a more exacting approach is required where the concern is with the recovery of compensation for the benefit of surviving relatives (substantive Art.2 claims).
- In support of this distinction Mr Sanders relies on the obiter observations of Lord Scott in Savage v South Essex Partnership NHS Foundation Trust  1 AC 681 at para 5:
"I can well understand how a member of a deceased's family may be regarded as a 'victim' for the purposes of the article 2(1) investigative obligation. An important, and perhaps the main, purpose of the investigative obligation is to enable the family of the deceased to understand why and how the deceased died and who, if anyone, was responsible for the death. It would follow that a close family member, such as a daughter of the deceased, could properly be regarded as a 'victim' of a failure by the state to discharge its investigative obligation. But I am quite unable to understand how a close family member can claim to be a 'victim' in relation to an act, in breach of the article 2(1) negative obligation, or in relation to an omission, in breach of the article 2(1) positive obligation, that had led to the death. The domestic law of a country may, as the domestic law of this country does, provide a remedy to the estate of the deceased and to the dependants of the deceased in any case where an act or omission unlawful under civil law has caused death. But I do not see it as any part of the function of article 2(1) to add to the class of persons who under ordinary domestic law can seek financial compensation for a death an undefined, and perhaps undefinable, class composed of persons close to the deceased who have suffered distress and anguish on account of the death."
(See also Van Colle v Chief Constable of the Hertfordshire Police  1 WLR 1821 at paras 113-114, per Sir Anthony Clarke MR, delivering the judgment of the Court).
- However, as Mr Sanders recognises, the legal landscape has recently changed. In Rabone and Rabone v Pennine Care NHS Trust  EWCA Civ 698 the Court of Appeal considered a claim by the claimants in their own right, as the parents of a young woman, who having been admitted to hospital was given home leave that resulted in her suicide. Jackson LJ concluded that the claimants should be treated as victims for the purposes of the Article 2 claim, unless the litigation under the Law Reform Act and the settlement of that litigation deprived them of that status. He said:
"88. In Savage Lord Scott expressed doubt as to whether Mrs Savage's daughter could be a victim for the purposes of that litigation: see paragraphs 4 and 5. These comments were obiter, since that question did not form part of the preliminary issue under appeal and had not been the subject of argument. It has, however, been argued in the present case and the relevant authorities have been cited.
89. In Yasa v Turkey (1999) 28 EHRR 408 the Strasbourg court held that a nephew was entitled to bring a claim in respect of the murder of his uncle. That claim was brought in respect of (a) alleged killing by government agents and (b) alleged inadequate investigation. At paragraph 66 the court held that 'the applicant, as the deceased's nephew, could legitimately claim to be a victim of an act as tragic as the murder of his uncle.'
90. In Edwards v UK (2002) EHRR 19 the parents of a prisoner, who was killed by a fellow prisoner, recovered compensation for breach of the operational and investigative obligations under Article 2. It was not disputed that they were victims for the purposes of Article 34.
91. In Kats v Ukraine (Application No.29971/04) the Strasbourg court made the following statement of principle at paragraph 94:
'The Court recalls at the outset that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased. For example applications have been brought by a deceased's wife (Aytekin v Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased's mother (Cicek v Turkey, No.25704/94, 27 February 2001), a deceased's father (Hugh Jordan v the United Kingdom, No. 24746/94, ECHR 2001-III (extracts)) and a deceased's brother and sister (see respectively Ergi v Turkey, judgment of 28 July 1998, Reports 1998-IV and Semsi Onen v Turkey, No.22876/93, 14 May 2002). Therefore the applicants in the present application can claim to be victims of the alleged violations under Article 2 of the Convention."
The court made a similar statement of principle in Micallef v Malta (2010) 50 EHRR 37.
"92. Finally it should be noted that in the recent trial of the Savage action (following the House of Lords decision on the preliminary issue) Mackay J held that Mrs Savage's daughter was entitled to bring her claim as victim: see Savage v South Essex Partnership NHS Foundation Trust (No.2)  EWHC 865 (QB) at  – . In the light of the Strasbourg authorities cited above, I consider that Mackay J's conclusion in Savage (No.2) was correct."
- Mr Sanders submits that the finding by the Court of Appeal in Rabone that the parents of the deceased would have satisfied the victim test for the purposes of their Art.2 claim did not form part of the ratio decidendi of the court's decision because it was ruled that the defendant Trust did not owe the claimants a duty and they would not have been victims in any event. Furthermore, he submits that the distinction in the Strasbourg authorities between substantive and procedural cases and the different approach taken to the recognition of victim status in each (particularly in connection with the award of compensation) does not appear to have been the subject of submissions or direct consideration by the court. In my view the Strasbourg case law does not support the three category analysis (see para 60 above) of Mr Sanders. If there was the critical different approach to be taken to the victim status in substantive and procedural cases at Strasbourg, it is highly unlikely that Jackson LJ (with whose judgment Rix LJ and Stanley Burnton LJ agreed) would have overlooked that fact. As it is they endorsed the decision of Mackay J in Savage (No.2) that Mrs Savage's daughter was entitled to bring a claim as a victim.
- Accordingly, I reject the Defendants' primary submission.
- The Defendants' secondary submission is that, if their primary submission is not accepted, it is necessary to consider the degree and proximity of any connection between the Claimants and the Deceased in determining whether either of them is capable of claiming to be a victim of any breach of his Convention rights under Art.2. Mr Sanders submits by reference to, what he describes as, the narrow category of individuals previously awarded compensation by the European Court of Human Rights in respect of breaches of the substantive obligations under Art.2 (i.e. widows, children and heirs) the Defendants would accept that the Second Claimant satisfies the victim test if she is the biological daughter of the Deceased; but they would dispute that the First Claimant does so either as his fiancée or on the basis she was in a relationship with the Deceased, or that the Second Claimant does so if she is not biologically the Deceased's daughter but has been brought up on the understanding that she is.
- The Strasbourg case law does not indicate that the category of individuals previously awarded compensation in respect of breaches of the substantive obligations under Art.2 is as limited as the Defendants suggest.
- In Yasa v Turkey (1998) 28 EHRR 408 the ECtHR held that the applicant, as the deceased's nephew, "could legitimately claim to be a victim of an act as tragic as the murder of his uncle" (para 66). The Court agreed with the view expressed by the Delegate of the Commission that "if a relative wished to complain about a question as serious as the murder of one of his close relations that ought to suffice to show that he felt personally concerned by the incident" (paras 63 and 66).
- In Velikova v Bulgaria (Application No.41488/98, 18 May 2000) the ECtHR accepted as an Article 2 victim the unmarried partner of the deceased in respect of his death in police custody. The Court ordered her to be paid 100,000 French Francs for non-pecuniary damage, and 8,000 Bulgarian Levs for pecuniary damage. The Court considered that:
"… the applicant must have suffered gravely as a result of the serious violations, found in the present case, of the most fundamental human rights enshrined in the Convention. The Court notes, inter alia, that the case concerns the death of the applicant's partner and father of three of her children." (para 98).
He was a man with whom she had lived for about 12 years (para 13). In Nachova v Bulgaria (2005) 42 EHRR 933 an application under Article 2 was brought by the daughter of the deceased who was killed by a member of the military police who was attempting to arrest him and also by her mother, described as the deceased's "partner" (para 171). The Court ordered that they jointly be paid €25,000 in respect of pecuniary and non-pecuniary damage. It is not clear from the judgment of the Court for how long the mother had been the partner of the deceased; the daughter was about a year old when her father was killed (paras 10-12). Similarly in Ognyanova v Bulgaria (2007) 44 EHRR 7, a case that concerned the death of the first applicant's partner and father of two of her children the Court awarded the first applicant €20,000 in respect of non-pecuniary damage on the basis that she had "suffered gravely as a result of the serious violations" of inter alia Article 2 (para 154).
- It is clear from the decisions of the ECtHR that the Court takes a broad view for the purposes of determining whether a person is capable of claiming to be a "victim" of a breach of Article 2 of the Convention. The Strasbourg authorities suggest a test that involves consideration of whether the relationship between the applicant and the deceased is such that the applicant has "suffered gravely" as a result of serious violations and is "personally concerned" by them. Each case is to be determined on its particular facts. A family member as distant as a nephew can bring a claim; so too can a partner of the deceased, in particular if that person is also the parent of a child of the deceased. I have not been referred to any case where the applicant is a fiancée of the deceased, but in my view, such a person is capable of being a victim as falling into the category of persons who "suffered gravely" as the result of serious violations of Article 2. If the First Claimant was "merely in a relationship with the Deceased" whether that would suffice will have to be determined on the particular facts of the case. The nature and length of the relationship and whether the Second Claimant is the biological child of the Deceased will be important factors for consideration. As for the Second Claimant if she is not biologically the Deceased's daughter but "has been brought up on the understanding that she is" whether that is sufficient to make her a "victim", again, will depend on the facts of the particular case. In the present case relevant factors for consideration are: (i) she was only one week old at the time of the Deceased's death; (ii) the Deceased was not named on her birth certificate as the father (para 4.16 of Agreed Case Summary); and (iii) she only visited the Deceased once, the day before he died (para 4.16). In my view on those facts it is unlikely the Second Claimant would be capable of being a "victim", however this issue cannot be finally determined on the present state of the evidence.
- In my judgment:
i) Issue 1
The First Defendant, the Secretary of State for Justice and/or the Ministry of Justice and/or the Governor did not owe a direct, non-delegable duty of care to the Deceased at common law to ensure that reasonable care was taken by Dr Willis and Dr Alaca in the discharge of their functions in connection with the matters complained of in the Amended Particulars of Claim.
ii) Issue 2
The Crown is capable of being a public authority within the meaning of HRA, s.6 but it cannot be held liable under ss.6-8 for the acts or omissions of the Doctors or Probation Officers referred to at para. 7 of the Amended Particulars of Claim and the other entities or individuals referred to at para. 7(iv)-(viii) and (xi)-(xiv).
iii) Issue 3
(a) If the First Claimant was the fiancée of the Deceased she is capable of bringing proceedings in her own right and of satisfying the "victim" test in HRA s.7 for the purposes of such a claim. If she was merely in a relationship with the Deceased, whether she will satisfy the test will depend, in particular, on the nature and length of the relationship.
(b) If the Second Claimant is the Deceased's biological daughter, then acting by her mother and litigation friend, she is capable of bringing proceedings against and recovering damages from the First Defendant in respect of the matters alleged in the Amended Particulars of Claim and, in particular, satisfying the "victim" test for the purposes of such a claim. If she is not biologically the Deceased's daughter, but she has been brought up on the understanding that she is, then on the facts agreed between the parties in the present case it is unlikely that she will satisfy the "victim" test for the purposes of such a claim; however whether she is capable of satisfying the test cannot be finally determined on the present state of the evidence.
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