Ann Thomson (ap) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Menzies,Lord Justice Clerk |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] CSIH 63 |
| Court | Court of Session |
| Published date | 28 June 2013 |
| Date | 28 June 2013 |
| Docket Number | A1030/08 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Menzies Lady Dorrian | [2013] CSIH 63 A1030/08 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the reclaiming motion ANN THOMSON (AP) Pursuer and Reclaimer; against THE SCOTTISH MINISTERS Defenders and Respondents: _______ |
Act: Di Rollo QC, Divers; Drummond Miller LLP (for Ross Harper, Glasgow)
Alt: Moynihan QC, McBrearty; Anderson Strathern LLP
28 June 2013
The pleadings
[1] The pursuer is the mother of the late Catherine Thomson, who was murdered by John Campbell on 22 August 2005 at her mother's address in Fernleigh Place, Moodiesburn. At the time of the murder Mr Campbell was serving a sentence of imprisonment, but had been permitted a "short leave". This was a temporary release from prison to enable Mr Campbell to visit his own home, which was stipulated as being that of his mother, in Deepdene Road, Moodiesburn. Following upon his arrest on 26 August 2005, Mr Campbell committed suicide.
[2] Mr Campbell was a person with a significant criminal record. It is averred that over the period from 1987 to 2001 he had accumulated some 36 convictions. On 20 January 1998, he had graduated to the High Court in Glasgow, where he was sentenced to four and three years imprisonment respectively for offences of assault and robbery and a contravention of the Firearms Act 1968. He was released from that sentence on 8 March 2001, but his licence was revoked two months later following his arrest on charges of breach of the peace and possession of a knife. He was released on licence again on 1 May 2002 and, a few days later, assaulted his estranged wife and her female friend at his wife's home. He was convicted of that offence on 27 August 2002, when he was sentenced to eight years and six months imprisonment for assault to severe injury and permanent disfigurement by use of a knife.
[3] The temporary release of prisoners is governed by the Prisons and Young Offenders Institutions (Scotland) Rules 1994. Rule 14A divides the supervision levels of prisoners into high, medium and low. The appropriate level is assigned having regard to a variety of different criteria, including the seriousness of the offence of which the prisoner has been convicted, his criminal record, conduct in custody and other related matters. The governor is required to review the level at least every twelve months after the expiry of an initial period of assessment.
[4] Rule 120(2) provides that the governor of a prison may grant an "eligible" prisoner short leave if he is of the opinion that it is appropriate to do so, having regard to certain criteria. A prisoner is only "eligible" if he has been assigned a low supervision level. Rule 126 permits the Scottish Ministers to give directions on, amongst other things, the manner in which a governor will consider an application for short leave and the relevant criteria which have to be satisfied before granting release. In terms of a direction dated 11 February 2005, one matter which a governor is required to carry out is an assessment of the risk that the prisoner may abscond and/or present a danger to the public. A governor requires to record his/her decision and the reasons for it in writing.
[5] After a short period in HM Prison Barlinnie, Mr Campbell was transferred to HM Prison Kilmarnock, where he was assessed as requiring high supervision. This level took into account his regular abuse of drugs, attempts at suicide and need for anger management. In May 2003 his supervision level was reduced to medium. In December 2004 it was reduced to low, thus allowing him to become eligible for short leave. It is the pursuer's contention that at no point should Mr Campbell's level of supervision have been reduced below medium.
[6] In May 2005, Mr Campbell was transferred to HM Prison Friarton and, in July, to the open prison at Castle Huntly. In early course he applied for short leave. His application was granted on 8 August 2005, although it is averred that no assessment was carried out by the governor in relation to the risk which he posed to the public. It is also averred that no reasons for the grant of leave were recorded in writing. It is said that a proper assessment of the risk posed by Mr Campbell, which would have taken into account his history of significant violence, substance abuse, lack of co-operation with authority and related matters, would have concluded that there was an "unacceptable" risk that he would behave violently in the event of release.
[7] On 18 August 2005, the deputy governor of the prison met with Mr Campbell to review the grant of leave. By that time Mr Campbell had tested positive for illegal drugs. As a result of that, a penalty of loss of home leave was imposed, but this was suspended for a period of two months. Mr Campbell was released on 19 August and transported to Buchanan Street Bus Station, Glasgow, in accordance with normal arrangements.
[8] The pursuer avers that, after his arrival at Buchanan Street, Mr Campbell made his way to his mother's house in Deepdene Road. It was after that that he came into contact with the deceased. The deceased was known to Mr Campbell. She had been a friend of his since childhood. She had grown up with him in Moodiesburn and had been the girlfriend of his brother for some five years. She had regularly socialised with Mr Campbell. Mr Campbell and the deceased consumed a variety of Class A drugs over 20 and 21 August. It is said that at some point during this period he made threats to kill the deceased as she had not returned certain money of his. He stabbed her to death on 22 August.
[9] On the basis of these factual averments, the pursuer seeks reparation from the defenders, by reason of the fault and negligence of the Scottish Prison Service ("SPS") and their staff, for whose acts and omissions, in the course of their employment, the defenders are said to be responsible. In particular it is averred that:
"The Scottish Prison Service owed a duty of care to the deceased and other members of the public not to release violent and dangerous prisoners such as Campbell on short term leave if such prisoners presented a real and immediate risk of danger. Campbell presented a real and immediate risk of danger to the public. That he did so was known or ought to have been known to the defenders".
[10] It is contended that the SPS knew or ought to have known that, when released on leave, Mr Campbell would abuse alcohol and drugs and that he would come into contact with family members and their associates. The SPS knew that he had unresolved anger management difficulties and that his propensity to abuse illegal drugs rendered him liable to be violent and dangerous "to those with whom he would be expected to have dealings during the weekend release". The SPS were aware of the various risk factors. On that basis it is averred that:
"They knew that these factors were such that he posed a real and immediate risk of danger to those persons with whom he would be expected to have dealings during his weekend release".
[11] In short, the pursuer maintains that Mr Campbell should not have been characterised as suitable for low level supervision and that, in any event, his circumstances were such that he should not have been considered for short leave. As a separate ground of claim it is maintained that the SPS did not protect the life of the deceased, as they were required to do, in terms of Article 2 of the European Convention on Human Rights. They were thus acting unlawfully in terms of section 6(1) of the Human Rights Act 1998.
The Lord Ordinary's decision
[12] The Lord Ordinary dismissed the action as irrelevant. He did so having heard extensive submissions on the extent of the duty of care owed by prison and other public authorities to those outside the prison walls, in the event of either an escape or a negligent release on parole. The Lord Ordinary focused his analysis on the need for "proximity" in defining the extent of the duty of care owed to a person's "neighbour" in terms of Lord Atkin's classic dictum in Donoghue v Stevenson 1932 SC (HL) 31 (at 44-45). He looked carefully at the speech of Lord Diplock in Dorset Yacht Co v Home Office [1970] AC 1004 (at 1070), where it was emphasised that, for a duty of care on the part of a custodian of a prisoner to exist, there had to be some relationship between the custodian and the injured party which exposed that party to "a particular risk of damage ... which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public". The Lord Ordinary noted that this approach had been adopted by Lord Keith in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (at 62). The need for proximity as a component had been affirmed by the tripartite test, which appeared in Caparo Industries v Dickman [1990] 2 AC 605 (Lord Bridge at 617-618) and which was in turn said to be part of the law of Scotland in Mitchell v Glasgow City Council 2009 SC (HL) 21 (Lord Hope at para [25]).
[13] The Lord Ordinary specifically noted the statement of principle that foreseeability of harm to the public at large was not sufficient for the imposition of a duty of care. It was that statement which he regarded as "the point of departure" between the respective approaches of the parties. He considered that the pursuer's case came within the category or sub-category of incidents analysed in Dorset Yacht Co (supra), Palmer v Tees Health Authority [2000] PNLR 87, K v Secretary of State for the Home Department [2002] EWCA Civ 775, State of New South Wales v Godfrey [2004] NSWCA 113 and Couch v Attorney General [2008] 3 NZLR 725. In that regard there was a need to establish proximity in addition to foreseeability. For there to be a duty of care, there had to be a "special risk", by which was meant that, in some way particular to the injured...
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