G4S Care and Justice Services Ltd v Dawn Luke (Suing on behalf of and as Administrator of the Estate of Dean Boland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 26 June 2019 |
| Neutral Citation | [2019] EWHC 1648 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C86YJ732,C86YJ732 |
| Date | 26 June 2019 |
[2019] EWHC 1648 (QB)
Mr Justice Julian Knowles
Case No: C86YJ732
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
ON APPEAL FROM BIRMINGHAM COUNTY COURT
Birmingham Civil Justice Centre
33 Bull Street
Birmingham
B4 6DS
Alan Payne QC (instructed by DWF) for the Appellant
Sarah Hemingway (instructed by Murria) for the Respondent
Hearing dates: 20 March 2019
Approved Judgment
The Honourable
Introduction
This is an appeal by G4S Care and Justice Services Limited (G4S) against the decision of His Honour Judge Worster on 23 March 2018 in which he dismissed its application for summary judgment and/or to strike out Dawn Luke's claim for damages under Article 2 of the European Convention on Human Rights (the Convention/the ECHR) in respect of the death of her son, Dean Boland. At the time of his death Mr Boland was a serving prisoner in HMP Birmingham (the Prison), which at the time was run by G4S. Ms Luke sues G4S as the Administrator of her late son's estate. For clarity I will refer to G4S as the Defendant and Ms Luke as the Claimant.
I think it will aid understanding of the issues on this appeal if I sketch out now the basis of Ms Luke's claim under Article 2.
Article 2(1) of the Convention provides:
“Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
In Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72, [93]–[94] Baroness Hale explained that the first sentence of Article 2(1) imposes three distinct obligations upon the state. The first, which does not arise in this case, is a negative obligation, not to take life except in the limited cases provided for in Article 2(2) (eg, in defence of any person from unlawful violence). The second, which also does not arise here, is a positive obligation to conduct a proper investigation into any death for which the state might bear some degree of responsibility. The third, with which this case is concerned, is a positive obligation to protect life. As a general rule, that positive obligation is fulfilled by having in place laws and a legal system which deter threats to life from any quarter and punishes the perpetrators or compensates the victims if deterrence fails.
However, in certain circumstances, the state's positive obligation to protect life goes further than that. It entails an obligation to take positive steps to prevent a ‘real and immediate risk’ to the life of a person in a recognised category of particularly vulnerable people from materialising. The origins of the ‘real and immediate’ test lie in the decision of the European Court of Human Rights in Osman v United Kingdom (2000) 29 EHRR 245, [116]. Later in this judgment I will say more about what ‘vulnerable’ means in this context. The positive steps required by the state to fulfil this duty are those measures within the scope of its powers which, judged reasonably, might be expected to avoid that risk. This duty is often referred to in the cases as the Article 2 ‘operational duty’, or as the Osman duty.
There is a succinct encapsulation of the scope of the Osman duty in R (Kent County Council) v HM Coroner for the County of Kent [2012] EWHC 2768 (Admin) (Foskett J and the Chief Coroner), [41]:
“The operational duty is expressed in this way: where there is an allegation that the authorities have violated their positive general duty to protect the right to life, it must be established 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 and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk: Osman v United Kingdom (2000) 29 EHRR 245; Mitchell v Glasgow City Council above; Watts v United Kingdom (2010) 51 EHRR 66 at paras. 82–83; Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.”
It is not in dispute for these purposes G4S is a public authority which, in appropriate circumstances, owes those in its custody this positive operational duty.
Mr Boland had a history of drug abuse going back to when he was a teenager. He died after taking a mixture of prescribed and illicit drugs. Ms Luke seeks damages for alleged breaches by G4S of its Article 2 operational duty in relation to Mr Boland. In summary, Ms Luke's case is that G4S took insufficient positive steps to protect her son from the risks posed by the use of illicit drugs within the Prison.
The factual background and the judgment below
The Prison is a Category B/C men's prison accommodating remand and sentenced prisoners. It was operated by G4S from 2011 until 2018, when it was returned to HM Prison and Probation Service for improvement. G4S was therefore responsible for the Prison at the relevant time and thus, as I have said, was a public authority for the purposes of Article 2.
Mr Boland was born in 1985 and was aged 30 when he died. He had a long history of drug use. The evidence before the judge showed that he had used heroin and crack cocaine since he was 13. He had spent a considerable period of his life in custody for a variety of offences. On 20 December Mr Boland's licence was revoked after he was arrested for burglary. He tested positive for Class A drugs and was sent to HMP Birmingham to serve a fixed recall period of 28 days. He was prescribed methadone, which was changed to Subutex shortly before his release. On 15 January 2015 he was released on licence with a prescription for Subutex.
While he was on licence Mr Boland tested positive for cocaine and opiates and did not attend a probation supervision appointment. On 28 January he was arrested for shoplifting and on 29 January 2015 he was sentenced to eight weeks imprisonment and sent once again to HMP Birmingham. His license was revoked, meaning that his latest date of release was 16 January 2016, unless the Parole Board directed his earlier release.
He told the prison about his drug use at his initial screening interview and sought treatment for opiate addiction. He had a number of interviews and was given various prescriptions for medication. He was also given advice about the risks of taking additional, non-prescribed medication that could slow his breathing and functioning of his central nervous system to dangerous levels. He was told he would have regular urine tests to check the effectiveness of his treatment.
Mr Boland was found on the floor of his cell by his cell-mate in the early hours of 17 April 2015 and was declared dead shortly afterwards. According to the post-mortem report, he died of ‘mixed drug toxicity’. Eight drugs were found in his system. Two of these had been prescribed to him while six were either illicit or had not been prescribed for him. Of these six drugs, one was Buscopan (a prescription drug, although not one prescribed to Mr Boland) and another a so-called ‘legal high’ called ‘Black Mamba’ or ‘Mamba’. More drugs were found in his cell following his death.
An inquest into Mr Boland's death was held by a Coroner sitting with a jury. The jury's conclusion as to the death was as follows:
“Dean Ronald Edmund Boland was discovered on the floor in Cell 12 3 rd Landing B Wing in HMP Birmingham on 17 th April 2015 at approximately 3.30am by his cell mate. He was pronounced dead at 4.12am. He died of mixed drug toxicity. Leading up to this he had self-administered various medications. A combination of prescribed and illicitly obtained medication were found to be present in the samples taken from him and subsequently found in his cell.
Dean gained access to these non-prescribed substances […] legal highs by exploiting inadequacies within the prison.
Searches that are carried out are inadequate.
General awareness of drug use and the associated is lacking ( sic).
Communication between departments concerned with maintaining the well being of drug dependent inmates is poorly implemented.
Basic checks concerning the hoarding of medication are not been carried out ( sic).
Medical regimes are not adequately monitored.
Perimeters are poorly protected.
This has resulted in a facilitation of a culture of irresponsible drug use within the prison's drug detoxification facility.”
The Particulars of Claim allege that G4S failed in its positive obligation to protect Mr Boland's right to life under Article 2 by ( inter alia) failing to take various steps at the Prison to restrict or stop the use by prisoners of illicit drugs. The Claimant's case as to why there was a real and immediate risk to Mr Boland's life which the Defendant was or should have been aware of is set out in [18] of the Particulars of Claim, which the judge set out at [16] of his judgment:
“By way of non-exhaustive example, the Claimant will rely upon the following facts and matters in support of the contention that the Defendant knew or ought to have known of a real and immediate risk (being a substantial or significant risk) to Mr Boland's life:
(a) Mr Boland was a vulnerable individual by the mere fact of being a detainee in the Prison;
(b) At the time of his entry into the Prison, Mr Boland was known to be a drug addict, the Defendant's employees and/or agents having decided to treat him as such following his initial screening;
(c) The Claimant understands that the Defendant had various policies in place which seek to ensure that individuals who are addicted to drugs or other substances are screened and provided with appropriate treatment whilst at Prison;
(d) The Defendant is fully...
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