Ms Angela Carr v G4S Care and Justice Services (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill DBE |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWHC 3003 (KB) |
| Docket Number | Case No: QB-2021-001271 |
| Court | King's Bench Division |
[2022] EWHC 3003 (KB)
Mrs Justice Hill DBE
Case No: QB-2021-001271
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Jacobs (instructed by Bhatt Murphy) for the Claimant
John-Paul Waite (instructed by DWF Law LLP) for the Defendant
Hearing date: 7 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By this claim, issued on 11 October 2019, the Claimant brings proceedings against the Defendant arising out of the death of her son, Andrew, on 29 March 2018. He died while a serving prisoner at HMP Birmingham, from the use of a synthetic cannabinoid. This is part of a group of substances known as Psychoactive Substances (“PSs”) or New Psychoactive Substances (“NPSs”).
At the time of Mr Carr's death, the Defendant was contracted to run HMP Birmingham, having been awarded a contract to do so for 15 years in 2011.
The Claimant's claim is advanced as a breach of two of the duties arising under the right to life in Article 2 of Schedule 1 to the Human Rights Act 1998 (“the HRA”), namely the ‘general’ duty and the ‘operational’ duty.
By an application notice dated 27 March 2020 the Defendant seeks an order striking out the claim under CPR 3.4(2)(a) and/or granting summary judgment for the Defendant under CPR 24.2(a)(i) and (b).
When the application was issued it was supported by one witness statement, from the Defendant's solicitor, Suzanne Farley, dated 23 March 2020. This focussed solely on the operational duty element of the Claimant's claim. The Claimant responded with a witness statement from her solicitor, Simon Creighton, dated 16 April 2020.
The application was due to be heard by District Judge Jackson in the County Court at Mayors and City of London Court on 9 December 2020. Shortly before the hearing the Defendant filed a skeleton argument. This raised, for the first time, the argument that an allegation of breach of the general duty could not be brought against a private contractor, such as the Defendant, meaning that the Claimant had no real prospect of establishing a breach of the general duty.
The District Judge adjourned the application and transferred the case to the High Court. Provision was made for further evidence to be filed and served. Both parties served further statements from their solicitors: for the Defendant, a statement from Andrew Holland dated 2 January 2021 and for the Claimant, a statement from Carolynn Gallwey dated 7 October 2022.
The facts and the evidence
The following summary of the factual context is taken from the Particulars of Claim and the evidence provided for the purposes of the application. The reports and other documents referred to below were exhibited to the various solicitors' statements.
Events leading up to Mr Carr's death
On 6 July 2017 Mr Carr was remanded in custody to HMP Birmingham. On 3 August 2017 he was sentenced to three years and four months imprisonment for offences of burglary and theft.
On 18 August 2017 he was transferred to HMP Stoke Heath and on 10 January 2018 to HMP Oakwood.
The Claimant has pleaded in her Particulars that:
(i) While at HMP Stoke Heath, Mr Carr told healthcare staff that he had panic attacks and had been hearing voices and “seeing shapes”; and was prescribed diazepam to assist him in controlling his anger and agitation; and
(ii) While at HMP Oakwood, on three occasions in February 2018, he was found under the influence of PSs, and on two of those occasions, officers felt it necessary to call a “Code Blue” (an alert indicating that a prisoner is unconscious or not breathing).
There is evidence suggesting that Mr Carr had a lengthy history of substance misuse and had used NPSs on multiple occasions at both Stoke Heath and Oakwood.
On 19 February 2018 Mr Carr was transferred to HMP Birmingham. On 27 February 2018 he assaulted a prison officer and was placed in the segregation unit.
The Claimant's pleaded case is that Mr Carr was “known on the wing at HMP Birmingham for taking illicit substances” (although he had also told Officer Andrew Bailey that “whilst he was not in custody, he had tried to get off ‘Mamba’ [a PS]”). In a segregation unit health screen, he stated that he had taken drugs when he was on the wing.
However, Mr Holland's statement indicated that Mr Carr had not been “recorded by any individual as being under the influence of an illicit substance” while at HMP Birmingham and that there was “no evidence to suggest that the prison officers or healthcare were [on] notice that he was taking illicit drugs in Segregation”.
At some point after 8.35 pm on 29 March 2018 Mr Carr was given hot water by Officer Bailey and another officer. At around 9.30 to 9.40 pm Officer Bailey heard Mr Carr talking through his cell door to another prisoner.
At around 10.05 pm Officer Bailey checked Mr Carr through the door of the cell and saw him on the floor in the foetal position, lying on his side, with his face turned away from the cell door. The Claimant's pleaded case is that Officer Bailey formed the opinion that Mr Carr had taken Mamba and collapsed under its effects.
Officer Bailey did not call a Code Blue and instead continued his round of the segregation unit, checking on the rest of the prisoners. Approximately 5 minutes later, Officer Bailey returned to Mr Carr's cell to check on him again. He found him still lying on the floor in the same position. He kicked the cell door and shouted Mr Carr's name but received no response.
At around 10.10 pm Officer Bailey went to look for the Night Orderly Officer, Scott Plant, to get assistance to open the cell door. Officer Plant was in another cell on a different wing with the nurse. After concluding with that prisoner, Officer Bailey, Officer Plant and the nurse on duty on the wing, Sharon Kazmierowski, went to Mr Carr's cell and opened the door.
At about 10.23 pm Ms Kazmierowski observed that Mr Carr's lips were purple. She found no signs of life. CPR was commenced and an ambulance was requested. Mr Carr did not regain consciousness and was pronounced dead at 10.35 pm.
On investigation the police recovered a 24 foot rope from Mr Carr's cell that had been made from twisted sheets with a plastic bag attached to it. The Claimant's case is that the rope had been used by Mr Carr to receive drugs from another cell via the plumbing system.
On 4 April 2018 a post-mortem examination was carried out on Mr Carr's body. A toxicology report was prepared which identified the presence of the synthetic cannabinoid. The pathologist Dr Nicholas Hunt concluded that given the results of the toxicology analysis, and in the absence of any other factor capable of having caused his death, Mr Carr was likely to have died from the use of a synthetic cannabinoid.
The use of PSs and NPSs in HMP Birmingham prior to Mr Carr's death
Mr Holland's statement provided some contextual evidence about the emergence of NPSs within the prison estate. He quoted an HMCIP report from 2015 which indicated the following:
“Synthetic cannabis (more specifically, ‘Spice’) was first identified to HMI Prisons as a serious problem in December 2011 at the inspection of HMP Standford Hill, but was not identified as a widespread issue until 2013 onwards. In the 2013–14 annual report [by HMCIP] synthetic cannabis was identified as a concern by HMI Prisons in a third (37%) of male prisons inspected, and this increased to 64% in 2014–15…
…the availability of…NPS…particularly synthetic cannabis known as ‘Spice’ or ‘Mamba’, became highly prevalent during the preparation for this report. NPS have created significant additional harm and are now the most serious threat to the safety and security the prison system that our inspections identified”.
On 17 April 2015, Dean Boland died while a serving prisoner at HMP Birmingham. The details of his death can be elicited from the judgment of Julian Knowles J on the civil claim brought by his mother: G4S Care and Justice Services Limited v Dawn Luke (Suing on behalf of and as Administrator of the Estate of Dean Boland [2019] EWHC 1648 (QB).
Post-mortem evidence showed that eight drugs were found in Mr Boland's system, two of which had been prescribed to him, while six had not been so prescribed or were illicit. One of these was ‘Black Mamba’ or ‘Mamba’: Luke at [13]. The jury at the inquest into Mr Boland's death ultimately accepted the evidence given in the post-mortem report, to the effect that the cause of his death was ‘mixed drug toxicity’: Luke at [13]–[14]. However, Mr Holland's evidence was that “[t]he role of PS in Mr Boland's death is not clear”. He quoted the pathology evidence to the effect that ‘Black Mamba can be associated with cardiac complications, but it is not clear if it contributed to Mr Boland's death”. This chimes with the approach taken by Julian Knowles J: see [163] below.
The jury was also critical of the steps taken by the Defendant to reduce the ingress of illicit drugs into HMP Birmingham. The deficiencies were described as having facilitated “a culture of irresponsible drug use within the prison's drug detoxification facility”: Luke at [14].
In the meantime, in July 2015, the Prison and Probation Ombudsman (“PPO”) published a ‘learning lessons bulletin’ regarding NPSs. Mr Waite accepted that information from the PPO was provided to privately run prisons as well as those run directly by the state. The PPO introduced the bulletin by indicating that the precise health risks of NPSs were “difficult to establish” but that there was “emerging...
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