Thomson v The Scottish Ministers

CourtCourt of Session (Outer House)
JudgeLord Brodie
Judgment Date26 May 2011
Neutral Citation[2011] CSOH 90
Docket NumberA1030/2008

Neutral Citation: [2011] CSOH 90

Court and Reference: Outer House

Judge: Lord Brodie


Scottish Ministers

Appearances: SR Di Rollo QC and B Divers (instructed by Drummond Miller LLP) for AT; GJB Moynihan QC and K McBrearty (instructed by Anderson Strathern) for the Defender.

Issue: Whether the Scottish Prison Service could be liable in negligence or under Art 2 ECHR for a murder committed by a prisoner released from prison on short leave.

Facts: In August 2005, whilst on short-term leave from a sentence of 8 years' imprisonment for a serious assault, JC murdered T's daughter. He had many previous convictions for violence and numerous failures to comply with bail and licence conditions and with orders and treatment programmes. The decision to grant JC short-term leave was contrary to a mandatory direction issued by the Scottish Ministers under the Prisons and Young Offenders (Scotland) Rules 1994. No risk assessment had been carried out which would have disclosed the risk of JC behaving violently on leave and the Governor failed to record the reasons for his decision in writing. JC had failed a drug test one week earlier but was given a suspended penalty.

T sued the Scottish Ministers, representing the Scottish Prison Service, contenting that (i) JC's release was the result of negligent decisions which created a reasonably foreseeable hazard; (ii) the Scottish Prison Service failed to protect the deceased's life, thereby breaching Art 2 ECHR. The Scottish Ministers sought to dismiss the action on the basis that (i) there was no requisite degree of proximity so as to create a duty of care, and it was not shown that any decisions fell outwith the band of decisions open to a discretionary decision-maker; and (ii) there was no averment that at the time of his release JC presented a real and immediate threat to life (as opposed to presenting a danger).


[1] The pursuer is the mother of the late Catherine Thomson (‘the deceased”). On 22 August 2005 the deceased was murdered by John Campbell. The cause of death was loss of blood from a stab wound to the right side of her neck which had penetrated the jugular vein. On 22 August 2005, Campbell was serving a sentence of 8 years' imprisonment which had been imposed on 27 August 2002 in relation to 2 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. The murder took place at the home which the deceased shared with the pursuer in Moodiesburn, Glasgow.

[2] The pursuer now sues the Scottish Ministers who are representing the Scottish Prison Service. She alleges that the death of the deceased 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 alleges that the Scottish Prison Service, in contravention of Art 2 of the European Convention on Human Rights, failed to protect the deceased's life. The pursuer seeks funeral costs, as provided by s1(c) of the Damages (Scotland) Act 1976. She also makes a claim under reference to s1(4) of the 1976 Act. The defenders have insisted on their general plea as to the relevancy and specification of the pursuer's averments. Accordingly, the issue for determination when the case came before me on the Procedure Roll was whether the pursuer had pled a relevant case for enquiry. The defenders specifically do not take the point that the Scottish Ministers are not responsible for a prison governor exercising statutory powers: Sommerville v Scottish Ministers2007 SLT 113, Lord Hope at paras 41 to 48 and Lord Rodger at paras 134 to 144. Neither do the Scottish Ministers take any point on time bar under reference to s7(5) of the Human Rights Act 1998.

Prisons and Young Offenders (Scotland) Rules 1994

[3] The Prisons and Young Offenders (Scotland) Rules 1994 (‘the Rules”) provide, inter alia:

‘14A. The supervision levels which may be assigned to prisoners in accordance with this Part of these Rules are specified in column 1 of the Table set out below and the description of each level is set out opposite that level in column 2 of the Table:

Column 1

Column 2

Supervision Level


High Supervision

A prisoner for whom all activities and movements require to be authorised, supervised and monitored by an officer.

Medium Supervision

A prisoner for whom activities and movements are subject to limited supervision and restrictions.

Low Supervision

A prisoner for whom activities and movements are subject to minimum supervision and restrictions, and who may be given the opportunity to participate in supervised or unsupervised activities in the community.

Assigned supervision levels

14B. (1) Every prisoner shall be assigned a supervision level in accordance with the provisions of this Part of these Rules.

(2) Subject to the following paragraphs of this rule, a prisoner shall be assigned the appropriate supervision level having regard, so far as applicable, to the following criteria:

(a) the seriousness of the offence for which the prisoner has been convicted;

(b) the prisoner's previous convictions;

(c) any outstanding charges;

(d) the length of time that the prisoner has spent in custody;

(e) the prisoner's conduct in custody;

(f) the prisoner's trustworthiness and stability; and

(g) any other criteria as may be specified in a direction made by the Scottish Ministers for the purposes of this rule.

(3) Any such direction made by the Scottish Ministers may make provision for the relative importance that is to be given to each of the criteria in determining the assignment of a supervision level, and may make provision as to the form and content of any document that may be required to be completed by the Governor when assigning, or when reviewing the assignment of, a supervision level.

(4) Subject to paragraph (7) below, all prisoners, on reception, shall be assigned high supervision level.

(5) Within 72 hours of reception, the supervision level of all prisoners shall be reviewed in accordance with the provisions of these Rules.

(6) An untried prisoner, or a prisoner who has been convicted but is awaiting sentence, shall be assigned no lower a supervision level than medium supervision level.

(7) On reception, a prisoner who is:

(a) transferred under paragraph 1 of Schedule 1 to the Crime (Sentences) Act 1997 where the transfer is:

(i) a restricted transfer within the meaning of paragraph 6(1) of that Schedule; and

(ii) has been made for a temporary purpose; or

(b) transferred under paragraph 2 or 3 of Schedule 1 to the said Act of 1997, shall be assigned for the period of the detention a supervision level which, in the opinion of the Governor, is the nearest equivalent to the prisoner's classification in the prison or place in the part of the UK, the Channel Islands or the Isle of Man in which the prisoner was detained immediately before the transfer took place

(8) Following the review of a supervision level in terms of paragraph (5) above, the Governor shall keep under review and shall formally review within 6 months, and thereafter at least once in every period of 12 months, the supervision level assigned to each prisoner and may, if appropriate, assign another supervision level to the prisoner.

(9) The entitlement of any prisoner who is assigned low supervision level to participate in supervised or unsupervised activities in the community shall be subject to the requirements of rule 91 and of Part 14 of these Rules.

Temporary Release

Short leave and winter and summer leave

120. (1) In this rule:

(a) “short leave’ means temporary release from a prison of a prisoner for the purpose of enabling the prisoner to visit his home or other approved place for a period not exceeding 3 nights excluding travelling time; and

(b) “winter and summer leave’ means temporary release from a prison of a prisoner for the purpose of enabling the prisoner to visit his home or other approved place for a period of up to 5 nights, excluding travelling time, during the winter or summer.

(2) On the application of an eligible prisoner and subject to rule 126, the Governor may grant the prisoner short leave or winter and summer leave if the Governor is of the opinion that, having regard to the relevant criteria applicable to the grant of such leave, it is appropriate to do so.

(3) For the purposes of this rule, a prisoner is an eligible prisoner only if at the time of application the prisoner:

(a) is confined at a prison or in a particular hall or part of a prison to which this rule applies;

(b) is assigned low supervision level; and

(c) is not disqualified from consideration for any reason specified in rule 124(1)….

Direction with respect to temporary release

126. For the purposes of temporary release consisting of any form of leave or release specified in rules 120 to 123, the Secretary of State may specify in a direction:

(a) the prisons or any halls within particular prisons to which any of those rules applies;

(b) the manner in which the Governor shall consider an application for any such form of temporary release;

(c) the relevant criteria about which the Governor must be satisfied before he may grant any such form of temporary release;

(d) the conditions which may be imposed in relation to any approval of such an application;

(e) the timing and duration of any such form of temporary release and the frequency with which it may be granted to an eligible prisoner; and

(f) the persons who are to be treated as a near relative of the prisoner”.

[4] The Scottish Ministers made a direction in terms of Rule 126 on 11 February 2005. The direction included...

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