This case which proceeded before Lord Brodie is a tragic one.
The Pursuer’s mother was murdered by a Mr John Campbell 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. Previously there appeared to have been errors on the part pf the prison authorities as far as Campbell’s position within the “leave” scheme was concerned.
The Pursuer sued the Scottish Ministers as representing the Scottish Prison Service. She alleged that her mother’s death 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 alleged 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 case called on Procedure Roll on the Defenders’ general pleas to relevancy and specification.
The Defenders argued that the basic test was that laid down in Caparo Industries v Dickman  2 AC605. There Lord Bridge had put forward a synthesis (the “tripartite test”) which has become the most relevant test for determining the existence of a duty of care by reference to the requirement of foreseeability of damage, a relationship characterised by the law as one of “proximity” or “neighbourhood”, 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.
It was argued here that 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”.
“Even if 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 the pursuer 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”.
“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 … the state had an obligation to take appropriate steps to safeguard life within its jurisdiction. That required the putting in place of a criminal law backed by a 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…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 that “there was an unacceptable risk that Campbell would behave violently during his short term release.” The Article 2 case was therefore irrelevant.”
“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. … 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 must be a real, in the sense of objectively justifiable, apprehension of risk to life and it must be immediate. That was not averred.”
For the Pursuer it was argued 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. 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 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.
Senior Counsel for the Pursuer argued that 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 the period of his release pose a significant danger to members 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.
Lord Brodie then reviewed various authorities regarding negligence. HAving done so, he determined that the negligence case pled was irrelevant and the case based on that fell to be dismissed.
He commented that “
As far as the attack on specification of the “discretionary case was concerned, Lord Brodie stated 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. It was 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 mandatoryrequirement of 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 care”.
Turning to the case based on article 2, Lord Brodie stated that “There is reference to the history and pattern of his offending prior to conviction and to the risk factors. 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 accordingly irrelevant.”
The action was therefore dismissed.
The case was an interesting attempt to have the Prison Service held liable in respect of the release of Campbell. However the Caparo principles have been considered many times and, as a result, this case did not have enough to over-come what is a very high obstacle.
In addition, and despite what is said in the press and by politicians, there is no automatic victory for anyone praying in aid the European Convention on Human Right. However, the existence of the ECHR allowed a further argument to be put before the court, though unsuccessful.
The blame for this horrible event falls on Campbell. However, from a moral point of view, and clearly from the point of view of the Pursuer, it was the release of him by the Prison Service which set matters in train. Once more, as we often see in the courts, what might be seen as moral “responsibility” is a long way from legal liability.