England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HER HONOUR JUDGE FINNERTY

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 1st May 2001

LORD JUSTICE LATHAM:

1. On the 18th August 1991, the appellant's husband, Mr Orange, committed suicide by hanging himself by his belt from the horizontal bar to the gate to the cell in the Bridewell, Leeds, in which he was being held after his arrest for being drunk and disorderly. The appellant brought the claim on behalf of her husband's estate pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1934, and his dependants pursuant to the provisions of the Fatal Accidents Act 1976. She alleged that the police were negligent in failing to remove Mr Orange's belt from him, in failing to monitor him properly, and in placing him in a cell the gate to which provided a suspension point. On the 29th June 2000, Her Honour Judge Finnerty, dismissed the appellant's claims essentially on the ground that the police officers dealing with Mr Orange had no reason to believe that he presented a suicide risk, and therefore the respondent had no duty of care to protect him from the risk of suicide. The appellant now appeals against that judgment.
2. Mr Orange was 25 years old at the time of his death. He was married with two very young children. The judge concluded that he was a contented family man who had no history of depression or mental illness, who had everything to live for, and who had never given any indication of any intention or inclination to take his own life. His mother described him as follows:

"Paul did not smoke, he liked a drink, he was a daily drinker and when he was under pressure at work he drank more. I cannot be absolutely certain, but I would say he drank approximately 3 litres of cider a day If he wasn't drinking cider, he drank lager and lime. The last few weeks I had not seen him drinking at all. Very occasionally, on his birthday etc., he would go out and drink to excess."

3. It was to be Mr Orange's 26th birthday on the 19th August 1991. On the 17th, he went out with his friend Mark Mitchell to celebrate. They left home at about 7.30 p.m., and at the time of his arrest, at 5.40 a.m. Mr Orange and Mr Mitchell were on their way back home in the Chapeltown area of Leeds. Mr Orange had clearly had a substantial amount to drink. At the Inquest, Mr Hammond, a forensic scientist, concluded that the peak level of alcohol in his body would have been in excess of 296 mgs of alcohol in 100 mls of blood. It could have been as high as 330 to 340. Mr Hammond described this as a large amount of alcohol. He would have expected a person with this amount of alcohol in his body to be staggering around and to be very noticeably drunk.
4. Mark Mitchell described Mr Orange as having been drunk but not incapable. He said that he had not fallen down whilst they were walking home, but he was swaying about. Two police officers, PCs Holmes and Jenkinson, passed the two men in their police van; Mr Orange shouted at them to "fuck off". They stopped their vehicle, and went to speak to him. Mr Orange continued to be abusive. He was arrested for being drunk and disorderly. PC Jenkinson said:

"I saw him walking up the street, struggling to keep upright. It was obvious he had been drinking, but he was walking under his own steam. He was volatile when speaking to us but we understood one another. He was argumentative and swaying but made no attempt to get away from us, nor did he struggle."

5. He described Mr Orange as having been argumentative in the police van. When he was brought to the Bridewell, and was in the custody suite, he began to cry, saying "It's my birthday tomorrow, you can't do this to me.". The police officer concluded:

"I have a great deal of experience in dealing with drunks. He was a drunken young man who gave me no undue cause for concern."

6. The custody officer at the time was Michael Johnson, a retired police inspector who had completed 30 years service. He described Mr Orange as argumentative and verbally aggressive, but stated that there was no suggestion that he was suicidal or was going to harm himself. Indeed Mr Johnson allowed Mr Orange to retain all his clothing, including the belt in his trousers. When asked why he allowed Mr Orange to retain his belt, Mr Johnson said: "The question I asked myself was why should I take it from him?"
7. He was referred to paragraph 13 of Part G of the West Yorkshire Police Standing Orders in force at the time, which gave effect to the provisions of the Code of Practice under the Police and Criminal Evidence Act 1984 and s. 54(4)(a) of that Act. Paragraph 13 provided:

"Clothes and personal effects may only be seized if the custody officer

(a) believes that the person from whom they are seized may use them to cause physical injury to himself or any other person ........"

8. He said that he had no reason to believe that Mr Orange would cause himself, or anyone else, any harm. Mr Kilmartin, a police sergeant with 27 years experience took over from Mr Johnson and was in fact responsible for booking Mr Orange in. He stated that during the booking in period Mr Orange became agitated and distressed, to the extent that Mr Kilmartin decided that he was not in a fit state to be told of his rights under the Police and Criminal Evidence Act at that time. Mr Orange was then escorted to the cell by a Mr Sugden, another retired police officer, who described him as abusive, drunk and excitable, querying the reason for his arrest. Mr Sugden described him as a "run of the mill drunk".
9. On that evidence, the judge found that there was nothing in the behaviour or demeanour of Mr Orange that indicated, or suggested, to the police officers who were in charge of him that he was a suicide risk.
10. Mr Orange was placed in Cell No 7, which was a large holding cell routinely used to hold prisoners arrested for being drunk and disorderly, and monitored by a closed circuit television camera. However the camera did not cover the area around the entrance to the cell which was recessed. Entry was gained through a door which opened outwards from the cell immediately inside which was a gate consisting of a steel frame with vertical steel bars and a horizontal crossbar approximately three feet from the ground, which opened inwards. The judge was referred to two Home Office Circulars. The first, HOC 92/68 dated 10th April 1968, stated:

"Police Authorities and police officers are aware of the need to ensure that prisoners in cells should not provide opportunity for a prisoner to do himself injury. A recent case where a prisoner has hanged by a strip of material torn from his pillow case and looped around a protruding pin of the upper hinge of the cell door has emphasised the risk presented by unforeseen hazards, and Chief Constables are requested to arrange for early inspection of all police cells to ensure there are no projections or fittings which prisoners might use to cause themselves injury."

11. The second, HOC 159/70 dated 22nd July 1970, under "Standards of Accommodation" stated:

"It is clearly impracticable to bring all cells and detention rooms up to the standard currently laid down for new buildings, but it is desirable that any police cells or detention rooms should meet the following criteria:

a. Structure and fittings should be such as to minimise opportunities for a prisoner to do himself injury (see Home Office Circular No 92/68 ....."

12. Although the judge made no specific findings in this respect, it is clear that the steel gate did not comply with these recommendations. The cross bar at the top of the gate provided a ready means whereby a prisoner could hang himself, if he was so minded, as, in the event, did the horizontal bar to which we have referred.
13. Mr Orange was the only prisoner held in this cell. The judge found that Mr Orange was visited at 30 minute intervals between 6 a.m. and 9.30 a.m., and monitored on the television screen between visits. She accepted that until 9.30 a.m. he was sleeping on one of the benches in the cell, and that between 9.30 and 9.40 a.m. he was seen to be walking around the cell not apparently in any distress. At 9.40 a.m. the decision was taken to release Mr Orange. When he opened the cell door, the police officer responsible for monitoring him, PC Lobb, found Mr Orange hanging by his belt from the horizontal bar. It was not possible to resuscitate him.
14. In coming to the conclusion, as she did, that there was no reason for the police to consider that Mr Orange presented a suicide risk, the judge had regard to two further pieces of evidence. First was a report from Dr Peter Wood, a consultant forensic psychiatrist, based upon research material which was available in 1991. His conclusions were as follows:

"1. Mr Orange was subject to gross intoxication with alcohol at material time.

2. A person who is subject to extreme levels of intoxication cannot be said to be of "sound mind" in that such a person is unable to apply reason, his judgment is impaired, as is his emotional control.

3. The risk of self harm by person grossly intoxicated should have been evident to those charged with Mr Orange's care whilst he was in police custody.

4. Ensuring a person's safety whilst he is in custody requires a balance between a number of factors:

the environment in which a person is held,

the degree of observation afforded to that individual

the objects in that individual's possession.

In Mr Orange's case it appears there was a failure to provide a safe environment and the level of observation was ineffective.

5. It was foreseeable that an individual left with a belt in a cell where there was a point from which a person could hang himself, that was not observed by the CCTV provided could harm himself under such circumstances.

6. The condition which led to Mr Orange's arrest is one that should have alerted those responsible for his safe keeping to the risk of self harm.

7. The points made in this letter are amplified in the document appended which refers to specific research into death by hanging in custody. This research was well established in the 1980s. The knowledge arising from it was disseminated thereafter with the police and prison authorities becoming aware of it so as to guard against suicide in custody before the time Mr Orange met his death."

15. Also before the judge was the evidence of Mr Hammond, to whom we have already referred, which had been given at the inquest. His evidence was to the effect that alcohol could in some individuals affect their mood, particularly because alcohol is a depressant. His view was that this depended upon the particular individual involved and how he appeared at the time that he was brought into custody.
16. The judge preferred the approach of Mr Hammond that alcohol affected different individuals in different ways. She did not accept the evidence of Dr Wood that every inebriated prisoner presented a foreseeable risk of suicide which should lead police officers to deal with him as a suicide risk. She took the view that each person had to be viewed individually and assessed individually as to the likelihood of his seeking to take his own life. As a result there had to be something more than the mere fact of inebriation before the duty of care as contended for by the appellant arose. She found that there was nothing to alert the officers to the fact that Mr Orange was a suicide risk.
17. The judge cited a substantial passage of evidence given at the Inquest by Chief Superintendent Halligan who had been appointed to investigate the death of Mr Orange on behalf of the Police Complaints Authority. In that passage, he dealt in detail with the extent of the supervision that had been exercised by the officers that morning. He took the view that the extent of supervision, particularly because of the presence of the CCTV, was exceptional. His view clearly was that in the absence of any cause for concern in relation to Mr Orange's safety or well being, no criticism could be made of the police officers responsible for Mr Orange's custody. It is implicit in the judge's judgment that she accepted Mr Halligan's evidence in this respect.
18. There are three grounds of appeal. First, it is said that the judge erred in law in holding as she did, that a duty to take reasonable care to prevent Mr Orange from taking his own life deliberately would only arise if the risk of suicide was foreseeable in his case. Second, it is said that the judge failed to deal with the appellant's submission that the respondent was subject to a duty in any event to take all reasonable steps to ensure that the cells were so designed as to minimise the opportunity of prisoners to kill or injure themselves in custody. Third, it is said that the judge was wrong to conclude that Mr Orange was not someone with a foreseeably enhanced risk of killing or injuring himself in police custody. She should not have rejected the evidence of Dr Peter Wood and relied on the evidence of Mr Hammond.
19. Mr Owen, QC, in his cogent and attractive argument, submitted on behalf of the appellant that the court should recognise that those who have been taken into custody, whether in police stations or prison, fall into a category of persons in respect of whom there is a significantly enhanced risk of suicide. He submits that the evidence also makes it plain that it is difficult if not impossible to predict whether an individual, except in extreme circumstances, presents a significant suicide risk, and that, therefore, those responsible for the custody of prisoners owe a duty of care to all prisoners to take some steps to reduce opportunities for suicide. He submits that this would not place too onerous an obligation upon the police or the prison service. The courts can ensure that the duty that is imposed is just, fair and reasonable by tailoring the standard of care to the particular circumstances. In the present case, whilst accepting that there was no specific reason for believing that Mr Orange was a suicide risk, nonetheless he was drunk, and there is material to suggest that a person who is drunk is less likely to think and therefore act rationally, he was allowed to keep his belt, and he was placed in a cell in which there was ready means of hanging himself by the belt. The respondent was therefore negligent in failing to recognise the general risk which Mr Orange presented, as a prisoner, and as someone affected by alcohol, and the particular risk presented by the fact that he retained his belt, and was placed in a cell, the gate to which was constructed so as to present a ready means of suspension.
20. It is accepted that the police owe a duty to any person in their custody to take reasonable care for that person's health and safety. This duty undoubtedly encompasses a duty to take reasonable steps to prevent a person from committing suicide if that person is known to be a suicide risk. In Kirkham -v- Chief Constable of the Greater Manchester Police [1990] 2 QB 283, damages were awarded to the widow of a prisoner who had committed suicide shortly after being handed over to the prison authorities from police custody. The police knew that he was a suicide risk and that he had made recent attempts to commit suicide but did not communicate that information to the prison authorities, in particular failing to complete the appropriate form which would have identified to the prison authorities that the deceased was a suicide risk. The deceased had been diagnosed as suffering from clinical depression. The judge held that the police were liable. The Court of Appeal upheld that decision on the basis that the responsibilities, which the police assumed towards the deceased when they took him into custody and handed him over to the prison authorities, included an obligation to pass on the information that he was a suicide risk. The court further considered that neither the defence of volenti non fit injuria, nor ex turpi causa non oritur actio could avail the police. Certainly as far as Lloyd LJ was concerned, the fact that the deceased was clinically depressed at the time was a factor of significance. He said at page 290:

"So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities as the case might be. Volenti non fit injuria would provide them with a complete defence ..... But in the present case Mr Kirkham was not of sound mind."

21. This issue was reconsidered by the House of Lords in Reeves -v- The Commissioner of Police of the Metropolis [2000] 1 AC 360. Again this was a case in which the deceased was known to be a suicide risk. He had been brought to the police station shortly after midday having tried to kill himself in the cell at the Magistrates' court. He was examined by a doctor, who, whilst concluding that he was not suffering from any mental illness or other mental disturbance, considered him to be a suicide risk and left instructions that he should be observed frequently. Within 25 minutes of his being returned to his cell after being examined by the doctor, he had managed to hang himself from material from his shirt which he had secured through the open spy-hole to the cell. The judge concluded that the police had been negligent. He held, however, that the deceased had been of sound mind, and that in those circumstances, his suicide was a novus actus interveniens, and dismissed the action. He expressed the view that if he had considered that that defence was not available he would have held the deceased 100% to blame, and accordingly awarded no damages in any event. The Court of Appeal by a majority, allowed the appeal on the grounds that the suicide, being the very act against which the police had been required to guard, did not constitute a novus actus interveniens, but that damages fell to be reduced as a result of the deceased's "fault" under the Law Reform (Contributory Negligence) Act 1945. The majority, Lord Bingham CJ reluctantly, concluded that the judge was right to say that the deceased should bear 0% of the responsibility.
22. The House of Lords was not concerned directly with the question of the scope of any a duty of care to take reasonable steps to prevent a person from committing suicide whilst in custody, for it was conceded that such a duty was owed to a person who was a known suicide risk. The direct concern of their Lordships was the question of whether or not there was any defence, given that a breach of that duty was also conceded. Their Lordships, by a majority, held that none of the true defences to the claim applied, namely novus actus interveniens, and volenti non fit injuria, but concluded that the deceased's suicide constituted "fault" for the purposes of the doctrine of contributory negligence and apportioned responsibility 50-50.
23. Although the issue with which we have to deal was not therefore determined by their Lordships, both Mr Owen on behalf of the appellant, and Mr Johnston on behalf of the respondent rely on passages from the Lordships' speeches which, they say, assist their respective cases. It is necessary therefore to look at these passages in order to determine the extent to which either can glean the support which he seeks.
24. Lord Hoffmann said as follows at page 366 A:

"The police and prison service have long been aware that prisoners are more than usually likely to attempt suicide or self injury. In 1994 the Director of Prisons issued an instruction to Governors (IG 1/1994) which said "The care of prisoners who are at risk of suicide and self harm is one of the Prison Service's most vital tasks". The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future. Between 1972 and 1982 45% of suicides in prisons were remand prisoners, although they made up only 10 to 15% of the prison population, Report by Helen Grindrod, QC and Gabriel Black "Suicides at Leeds Prison: An Inquiry into the Deaths of Five Teenagers during 1988/89" (1989), page 5. As long ago as 1968 the Home Office sent a circular to Chief Constables drawing attention to the need to ensure that fittings in cells should not provide an opportunity for the prisoner to do himself injury ......."

25. At page 368, when dealing with the argument that the deliberate infliction of damage on oneself was an act which negated a causal connection with anything that had gone before, he said:

"This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But once it is admitted that this is the rare case in which such a duty is owed, it seems to me self contradictory to say that the breach itself could not have been a cause of the harm because the victim caused it to himself."

26. Later in the page, he said at G:

"He (the Commissioner) accepts that he owed a duty of care to Mr Lynch to take reasonable care to prevent him from committing suicide. Mr Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind. The Commissioner does not seek to withdraw this concession on the ground that Mr Lynch has been found to have been of sound mind. For my part, I think that the Commissioner is right not to make this distinction. The difference between being of sound and unsound mind, while appealing to lawyers who like clear cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment. The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives."

27. Later when dealing with the question of contributory negligence, he said at page 372 F:

"The apportionment must recognise that a purpose of the duty accepted by the Commissioner in this case is to demonstrate publicly that the police do have a responsibility for taking reasonable care to prevent prisoners from committing suicide ..."

28. Mr Owen relies on this speech, and the passages to which we have referred for the proposition that, although the case itself was concerned with a deceased who was a clear suicide risk, nonetheless Lord Hoffmann recognised that there was an increased risk of suicide generally, and that the duty, which Lord Hoffmann accepted to be an unusual one, did not essentially arise out of the risk of a particular individual committing suicide, but generally from the position of control which the police and prison authorities have over a prisoner combined with what he described as "the special danger of people in prison taking their own lives". Mr Johnston on the other hand, submitted that none of these passages should be abstracted from their context, namely a case in which the duty of care was admitted and arose out of the very particular circumstances of the deceased presenting a known suicide risk.
29. Lord Mackay agreed with Lord Hoffmann and Lord Hope and gave no separate speech. Lord Jauncey, it is accepted on both sides, restricted his comments clearly to the position of a deceased who was known to be a suicide risk.
30. Lord Hope, however, made more general observations. At page 378A he said:

"My Lords, the problem with which this case is concerned is, sadly, all too familiar both to the police and to the prison authorities. It is well known that people are more likely to commit suicide when they are in prison or in a police cell than when they are at liberty. Research has shown that some prisoners are more at risk than others would be when detained in custody. Those who are mentally disordered, young persons on remand, and those who are serving very long sentences are thought to be particularly vulnerable. In some cases the prison regime may be a contributory factor in a prisoner's decision to end his own life. In others there may be no such contributory factor. The act of suicide may be both unforeseen and unforeseeable. But in the present case the act was foreseeable and it would not have occurred if reasonable care had been taken to prevent it."

31. Later at page 379, after stating that the Commissioner accepted that he owed a duty of care to the deceased Lord Hope, said at letter F:

"In my opinion it is necessary at the outset to identify the duty which was owed to the deceased by the Commissioner. There is no doubt that the Commissioner was right to concede that he owed a duty of care to the deceased while he remained in police custody. The deceased had been identified as a suicide risk, having on two previous occasions attempted to strangle himself with a belt after being placed in a cell. It was the Commissioner's duty to take reasonable care not to provide him with the opportunity of committing suicide by making use of defects in his cell door. The risk was not that he would injure himself accidentally if given that opportunity, but that he would do so deliberately. That is the nature of an act of suicide by a person who is of sound mind. It is a deliberate act of self destruction by a person who intends to end his own life. So I think that the Commissioner's duty can most accurately be described as a duty to take reasonable care to prevent the deceased, while in police custody, from taking his own life deliberately.

It is unusual for a person to be under a duty to take reasonable care to prevent another person from doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please, even if this would inevitably lead to their own death or injury."

32. Later at page 380C, he said:

"But the duty of care may sometimes extend to preventing people injuring themselves deliberately. The person to whom the duty is owed may be unaware of the risks to which he will expose himself by his deliberate act. Or he may be too young to appreciate them, as Yachuk -v- Oliver Blais Co Ltd [1949] AC 386, where petrol was sold to a child aged 9 who was unaware of its dangerous properties, or Hughes -v- Lord Advocate [1963] AC 837, where the inquisitive children meddled with objects in the unattended shelter in the roadway without thought as to the consequences. Or he may be of unsound mind, with the result that he is at risk of doing something to himself which no rational person would do as he would appreciate that to do this would inevitably lead to injury. Or the risk that the person may commit an act of deliberate self harm may be the result of something which the defendant has done or is doing to him.

That is the situation which may arise where a person who is of sound mind is deprived of his liberty and put in prison or detained in custody by the police. The duty of those who are entrusted with his custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he [may] remain free from harm until he is set at liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from the fact that he is being detained by them in custody and is known to be at risk of engaging in self mutilation or of committing suicide."

33. Later, when dealing with the question of causation, he said at page 381 E:

"The suicide was a foreseeable consequence of the failure in duty which occurred when the deceased who was a known suicide risk, was placed in a cell which provided him with the opportunity to carry out that act."

34. Mr Owen submits that Lord Hope was stating the general proposition that prisoners, as a category, present a higher risk of suicide, and that although later remarks in the speech would suggest that he was restricting the duty of care which arose as a result to a duty where a person was a known suicide risk, nonetheless that was only because that was the issue in the instant case. Mr Johnston, on the other hand, submits that the passages in Lord Hope's speech particularly at pages 379 and 380 make it clear that the very special duty to protect someone from self harm only arose out of the general duty to take reasonable care for that person's safety, if it was known that the particular prisoner might engage in self mutilation or suicide.
35. The only passage from the dissenting speech of Lord Hobhouse to which we have been referred was at page 388 G; when dealing with the judge's finding that the deceased was of sound mind, he said:

"It might be thought that any person locked up in a cell was almost certainly being subjected to abnormal stress which would be liable to cause him to act in an irrational fashion and do things which we would not normally contemplate; he may suffer impulses which he would not normally suffer. He may be in all other respects a normal person. He may not be mentally ill or otherwise suffering from any disturbance of the mind. It is the general experience of those concerned with prison administration and the custody of persons in police stations that the risk of suicide or self harm exists among those confined whether they be suffering from some frank mental condition or appear to be relatively undisturbed. Your Lordships have been referred to reports and statistics which support this and the risk is clearly recognised in the instructions and recommendations issued by the Police Authorities and the Home Department. The risk of suicide is a concern of those responsible for holding persons in custody and within their contemplation."

36. Mr Owen submits that this is further support for his argument that there is a general duty owed to all prisoners to take reasonable steps to prevent suicide.
37. The only authority to which we have been referred which suggests that there is a general duty of care as contended for by Mr Owen is the decision of the British Columbia Court of Appeal in Funk -v- Clapp 68 DLR (4th) 229. In that case the deceased husband of the claimant had been arrested for driving whilst impaired by drink and placed in custody. He was subsequently found dead, having hanged himself by his belt. The allegations were that, although he was not known to be a suicide risk, nonetheless the standard procedure in the Police Operating Manual had not been followed. It was alleged that he had not been searched properly, hence the fact that he still had his belt available to him, and he had not been monitored in the cell with the frequency which the Manual required. The judge at first instance had held that there was no case for the police to answer. The Court of Appeal concluded that there was. Seaton JA said at page 233:

"Suicide being reasonably foreseeable for prisoners as a group, and the defendants not having time to examine each person to see whether or not he is likely to attempt suicide, the reasonable course is to adopt a minimum standard applicable to all prisoners except those who require special attention. The steps outlined in the Operating Manual seem appropriate for the purpose."

38. The Court of Appeal accordingly held that there was evidence of a breach of duty, both in relation to the failure to remove the belt, and in failing to monitor the deceased in accordance with the Manual. At the retrial, the judge at first instance held that the failure to find the belt did not amount to a breach of duty. He concluded that the deceased had determined to commit suicide, although that was not in any way apparent to the police, and that he had in some way hidden the belt. He further found that although the deceased had not been monitored as often as was required by the Manual, that had not had any causative effect. He concluded that the deceased, having determined to commit suicide, would have done so even if he had been monitored at appropriate intervals.
39. The Court of Appeal dismissed the appeal. The decision is reported as Funk -v- Clapp (No 2) 54 DLR (4th) 512. Taggart JA said at page 521:

"As I view the findings of fact they result in the conclusion that Constable Clapp was not in breach of his duty to take reasonable care for the safety of this particular prisoner. I say that having regard for the circumstances of this case which indicate that there was no special reason for either Constable Clapp nor Mr Lafleche to believe that Mr Funk was suicidal in nature. They viewed him as a person who was impaired by alcohol who had committed a driving offence and they appear to have treated him in a way in which others were treated in similar circumstance."

40. Mr Owen submits that this case is a perfect example of what he submits to be the proper approach. The Court of Appeal which first dealt with the case recognised that there was a general duty of care which for the sensible reason there given required a minimum standard applicable to all prisoners. The second decision of the court was an example of the sensible application of a standard of care appropriate to the particular case. He further submits that all the material contained in the report of Dr Wood summarised in the conclusions to which we have already referred, and the material before the House of Lords in Reeves with copies of which we have been provided support the contention that the general risk, acknowledged by Lord Hoffmann, Lord Hope, and Lord Hobhouse exists. Further, this material supports the conclusion that the assessment of individual police officers, or prison officers, is not in itself a sufficient safeguard in identifying persons at risk of suicide. The research suggests that many of those who are identified as suicide risks make no attempt at suicide, and many of those who are considered to present no risk of suicide nevertheless do commit suicide.
41. We accept the general proposition that there is an increased risk of suicide amongst those in custody as against those in the community. We further accept from the material before us that there is a significant increase in that risk in certain categories of prisoners. It is noteworthy, however, that the majority of the material relates to suicide or attempted suicide in prison, either on remand or after conviction. The only material specific to deaths in police custody is a paper from the Home Office Police Research Group dated July 1998, which significantly post dates the events with which we are concerned. This describes such deaths as "rare". Further, there is no evidence which suggests that those arrested for being drunk and disorderly form a category of prisoner in respect of which there is any significantly increased risk of suicide. More particularly, there is no material before us which suggests that there had been any previous incidents of suicide or self harm in the Bridewell of any relevance to this particular case. It seems to us that it is in this context that the scope of the duty of care to an individual such as the deceased in the present case has to be considered.
42. The consequence of Mr Owen's argument is that every person taken into custody, whether police custody or the custody of the Prison Service, is to be treated as a suicide risk. We do not consider that that is the appropriate response of the court to the material before us. There is no doubt that a custodian owes a duty of care to those taken into custody. As we have said, the duty is to take reasonable care for that person's health and safety. In determining the extent of that duty, it is clearly relevant to take into account the fact that there is an increased risk of suicide amongst such prisoners. But that does not mean that suicide is a foreseeable risk in relation to every prisoner. As Lord Hope said in Reeves [supra] at page 378, suicide can be both unforeseen and unforeseeable. Nor do we consider that it would be fair, just and reasonable to impose upon either the police or the Prison Authorities a general obligation to treat every prisoner as if he or she were a suicide risk. The consequence would be an unacceptable level of control and precaution, not only as an obligation placed upon the authorities, but also as an imposition on the individual prisoner.
43. It seems to us that the right balance is struck by recognising, as Lord Hoffmann did in Reeves [supra] at page 368, in the passage we have already cited, that "a duty to protect a person of full understanding from causing harm to himself is very rare indeed". Lord Hope said much the same at page 379H, again in a passage which we have already cited. In my judgment, the increased risk of suicide amongst prisoners can properly be said to give rise to an obligation, within the general duty of care the custodian has for the prisoner's health and safety, to take reasonable steps to identify whether or not a prisoner presents a suicide risk. The obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arises where the custodian knows or ought to know that the individual prisoner presents a suicide risk. In our view Lord Hoffmann and Lord Hope when adverting to the general risk of suicide in prison and the relationship between the custodian and the prison were doing so in order to explain why the very unusual duty arose at all. We do not consider that Lord Hoffmann intended the duty to apply to all prisoners. Lord Hope, in our view, clearly intended that the duty should only be owed where the risk of suicide in the individual case justified imposing it.
44. In coming to this conclusion, we recognise that it is very difficult to determine whether or not a particular person may present a suicide risk. But we do not consider that the fact that it is difficult is a reason for treating suicide as foreseeable in the case of every prisoner. The difficulty in recognising the risk does not make suicide either more or less foreseeable in any given case. Mr Owen submits that the apparent rigidity or unreality of treating every prisoner as a suicide risk can be mitigated by adopting the flexible standard of care. But that immediately runs into the same difficulty. The assessment of the appropriate standard of care in any given case where there is no known risk of suicide will be similarly flawed. We do not consider this recognition of the fallibility of human judgment in this area justifies the imposition of the added obligations and restrictions to which we have referred in relation to every prisoner, into whatever category he falls. In particular, we do not consider that it justifies imposing a list of minimum precautions which may have no relevance in any particular case.
45. On the same day that we heard argument in the present case, the European Court of Human Rights gave judgment in Keenan -v- The United Kingdom App No 27229/95. In that case the court had to consider whether or not, there had been, among other things, a breach of Article 2 of the European Convention on Human Rights in the case of a young man who hanged himself in prison. Article 2 paragraph 1 provides:

"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."

46. The Court held that there was a duty on the authorities to protect the person in custody, who is in a vulnerable position, and that this duty extended to protecting him from self harm. It posed the relevant question arising under Article 2 as follows:

"The court has examined whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk."

47. Mr Owen acknowledges that this decision does not in itself provide any support for his submissions. We do not consider that the decision in any way affects the conclusion that we have come to as to the scope of the appropriate duty of care in common law. If anything, it confirms our view that the special and unusual duty is one which is only owed where the authorities know, or ought to know, of a suicide risk in an individual prisoner's case.
48. Applying that to the present case, the judge's findings of fact make it clear that the police officers did take reasonable steps to assess whether or not Mr Orange was a suicide risk. The only evidence which could support the argument that they knew or ought to have known that he was a suicide risk was the evidence of Dr Wood, which is said to establish that a person who is drunk presents an increased risk of suicide. The material upon which Dr Wood relied did not support the argument that a person arrested for being drunk and disorderly presented an increased risk of self harm. In view of the lack of any evidence to suggest that the police officers knew or ought to have known that a person in Mr Orange's condition presented a significantly increased suicide risk, the judge was entitled to take the view that the officers were justified in coming to the conclusion that they did on the basis of an assessment of Mr Orange as an individual, and was entitled to use the evidence of Mr Hammond to support that view. It follows that the judge was entitled to conclude that the officers were not negligent in permitting Mr Orange to retain his belt. Further, as he was not on the findings of the judge a person whom the officers knew or ought to have known to have been a suicide risk, he was not a person to whom the respondent owed a duty of care to prevent him from taking his own life deliberately. In these circumstances, whilst the gate itself clearly did not comply with the recommendations of the Home Office Circulars, its presence in the cell and the fact that Mr Orange was placed in that cell did not amount to a breach of any duty of care to him.
49. We therefore dismiss this appeal.
ORDER:
50. Appeal dismissed
51. Order as agreed between counsel
52. Application for leave to appeal to the House of Lords refused.
(Order does not form part of approved Judgment)