Scottish Court of Session Decisions

This action of reparation came before me for a Proof before Answer. On 28 July 1995 the pursuer was serving a sentence of imprisonment at Glenochil Prison. On that date he was assaulted by another prisoner, Patrick Flynn. During the course of the assault Patrick Flynn inflicted an injury on the pursuer's left eye with a makeshift knife. The pursuer was treated in hospital and after some time the eye was determined to be useless and an enucleation was carried out on it on 7 September 1995. The pursuer required to attend hospital repeatedly, and in due course was fitted with a prosthetic eye. By Joint Minute the parties have agreed inter alia that in the event of liability being established the Court should award the pursuer the sum of £27,500 by way of damages with interest thereon at the rate of 8% per year from the date of decree. The question for me to decide is therefore whether the pursuer has established liability against the defender, who is the Secretary of State for Scotland. (I note that the defender named in the instance was the Secretary of State at the time that the action was raised, and the instance has not been amended since the change of Government in 1997.)

The Secretary of State for Scotland is responsible inter alia for the operations of the Scottish Prison Service. It was not in dispute that the Scottish Prison Service and its officers owe a duty of care to prisoners under their charge. Nor was there any dispute about the standard of care to be exercised. It is sufficient therefore to quote two passages from cases to which counsel made reference. In Ellis v Home Office [1953] 2 All.E.R. 149 a prisoner had been attacked by a mentally defective prisoner who on the evidence had given the authorities no reason to suspect that he was liable to violence. The plaintiff based his case on a failure to supervise and a breach by a prison officer of prison rules. Although both the lack of supervision and breach of prison rules were established, Devlin J. found for the defendants on the basis that as there was no reason to anticipate an act of violence, negligence had not been established. The Court of Appeal upheld the judgment and Singleton L.J. stated at p. 154:

In Dorset Yacht Co v Home Office [1970] A.C. 1004 Lord Diplock at p. 1063 accepted Ellis v Home Office and another, unreported, decision as correct, and said that from these decisions it was possible to arrive by induction at an established proposition of law in these terms:

Reference was also made to Whannel v Secretary of State for Scotland 1989 S.L.T. 671, in which Lord Morton of Shuna referred to these decisions. In that case a borstal inmate sought damages from the Secretary of State in respect of stabbing injuries which he sustained in an assault by a fellow inmate. He averred negligence on the part of the prison authorities in allowing an inmate with a past history of violence and bullying such as that of his assailant to work in the kitchens, being an area where knives were available. Lord Morton held that failure on the part of the Prison Labour Allocation Board to communicate the assailant's past history to members of the kitchen staff where he was allocated to work amounted to negligence.

I return to consider the circumstances of the assault in more detail in light of these authorities. I start with a discussion of Patrick Flynn. Evidence about him was given by Audrey Park, who by the time of the proof was Deputy Governor of Perth Prison, but at the time of the assault was Operations Manager at Glenochil Prison. Patrick Flynn was convicted of murder in 1989 and thereafter was a Category "B" prisoner. On 7 April 1995 Audrey Park wrote to the Custody Division of the Scottish Prison Service requesting that he be upgraded to "C" category. The letter gave reasons for this request, following consideration of his case by the local security board. In the course of the letter she said:

Requests for the upgrading of a prisoner's category take some time to process, and this request had not been processed when Patrick Flynn committed the assault on 28 July 1995. He accordingly remained a Category "B" prisoner at that time. Audrey Park impressed me as a highly competent member of the Scottish Prison Service who could be relied on both in her account of matters of fact and in her assessment of the conduct of prisoners. I therefore accept as accurate the passage which I have quoted from her letter. The pursuer's pleadings contain an averment that the Scottish Prison Service and its officers "knew or ought to have known that Flynn had used a knife in prison on at least two occasions prior to said attack". There are further averments of an alleged history of violence by Patrick Flynn towards other prisoners. These averments appear to have been based on some rumour which the pursuer had heard, but there was no evidence to substantiate them. Audrey Park said that she could recollect nothing in Patrick Flynn's papers about any involvement with knives. The request that he be upgraded to "C" category was inconsistent with any history of violence towards other prisoners. I therefore proceed on the basis that the prison staff had no reason to regard Patrick Flynn as posing any greater than ordinary risk to his fellow prisoners.

On 27 August 1997 Patrick Flynn went to trial in Alloa Sheriff Court on an indictment charging him with assaulting the pursuer to his severe injury and permanent disfigurement. The first witness for the Crown was the pursuer, who not only failed to identify Patrick Flynn as his assailant, but identified another prisoner, James Welsh, who was brought into Court during his evidence, as the person who struck the blow which injured his eye. The Procurator Fiscal decided to call no further evidence, and by direction of the Sheriff the jury found Patrick Flynn not guilty. Patrick Flynn was called as a witness for the pursuer at the proof. During the course of his evidence he made some admissions about his part in the assault, but then became reluctant to continue lest he incriminate himself. I pointed out to him that, in the circumstances I have just narrated, he had tholed his assize and could not again be prosecuted for the same offence. He then proceeded to give a full account of his part in the assault, and I shall consider this along with the accounts of the other persons who were present.

The assault happened at a time when the pursuer and other prisoners were making their way from the accommodation halls to the worksheds. The route which they followed was called "the route" by prison officers and "the Russian Front" by prisoners. There were four accommodation halls, each of which opened onto a corridor. There was a sliding gate at the point at which each accommodation hall opened onto the corridor. The corridor ran in a straight line until it reached a wider space, the name of which was unclear but which I shall call the cookhouse hall. There was a sliding gate at the point at which the corridor opened into the cookhouse hall. Various doors opened off the cookhouse hall. At one side, which was to the left of prisoners following the route from the accommodation halls to the worksheds, a doorway opened into the cookhouse. At the other side, to their right, was the opening to a corridor, which ran, rising by three short flights of steps, towards the worksheds. A prisoner going from his accommodation hall to a workshed would therefore enter the first corridor and follow it in a straight line until he reached the cookhouse hall, where he would turn right and proceed for a short distance along one side of the cookhouse hall before leaving it by the second corridor, climbing the first flight of steps almost immediately thereafter. Prison officers were stationed at intervals along the route to supervise the prisoners as they went. A few Category "C" prisoners, known as the "garden party", who worked outside, gathered in the cookhouse hall near the cookhouse door. Apart from them, prisoners were required to proceed in a more or less orderly fashion, roughly in single file and without loitering. This was not, however, strictly enforced and thus the opportunity arose for Patrick Flynn to carry out his assault.

On Patrick Flynn's own account he had decided to assault the pursuer because he had heard some rumour that a man called Leslie had threatened him in some way. Unfortunately for the pursuer, he was mistaken for the intended victim because he shared the same surname with him. The makeshift knife which Patrick Flynn used to assault the pursuer, and the circumstances in which he came to have it in his possession, need to be considered in the broader context of the precautions which were taken to prevent prisoners from having such objects in their possession. The pursuer's case on record (which in this, as in other respects, is somewhat elliptical) appears to be that the knife had been made from an item of metal cutlery used to dispense meals in the dining hall and which had been smuggled out of the dining hall. The evidence, including that of the pursuer, in fact established that the dining hall had not been used as such for some time. Meals were served in a serving area in each accommodation hall. Prisoners were free to eat meals either in association with other prisoners or in their own cells. Their own personal cutlery was plastic. Metal utensils were used to serve the food. These were stored in a locked cupboard and accounted for under an inventory system after each meal. The makeshift knife used by Patrick Flynn was not made from one of these serving utensils. He said that he had made it from a support for a pasting table used in a workshed where instruction was given in painting and decorating. After the assault Patrick Flynn ran into a workshed and tried to hide the makeshift knife. A prison officer, John Hardie, saw him doing this and recovered it. It was not produced in Court, but both Patrick Flynn and John Hardie gave similar descriptions of it. It was about six inches long, taped at one end, and with the other end formed into a point. Patrick Flynn said that it was rusty. There was no suggestion from any witness that it had been made from a serving utensil.

When prisoners left the accommodation blocks to go to the worksheds they were subjected to rub-down searches at the accommodation block gates. Prisoners leaving worksheds where they had access to metal were subjected not only to rub-down searches but also to searches with hand-held metal detectors. If Patrick Flynn was telling the truth about how he had come by the makeshift knife, he must have succeeded in smuggling it past at least two rub-down searches and one search with a hand-held metal detector. He was not asked, nor did he volunteer, how he had succeeded in doing this. He attempted to give me the impression that it was easily done. In this, and in other material respects, I did not find him to be a convincing witness. He put on an air of braggadocio, which failed to impress me. In this state of the evidence, I am not prepared to reach any conclusions as to how Patrick Flynn came to have the makeshift knife in his possession at the time he committed the assault. Two further points require to be made at this stage. Firstly, as Audrey Park said, the ingenuity and determination of prisoners is such that they are able to conceal such items in a way that would foil a sophisticated metal detector. Secondly, as it happens, not long after the assault metal-detecting equipment, of the type used for passengers at airports, was installed on the route so that all prisoners leaving their accommodation halls required to pass through it. The decision to install it had been taken some time before the assault, and was not consequential upon it. Whether or not it would have detected Patrick Flynn's makeshift knife remains a matter for speculation, given the absence of acceptable evidence as to how he came to be in possession of it at the material time.

Evidence about the assault itself was given by the pursuer; two other prisoners who were walking with him along the route, namely Alan Boyd and William Gray; James Welsh, who was one of the garden party standing near the cookhouse door; Patrick Flynn, on whose evidence I have already made some comments; and John Taylor, a prison officer, who had retired by the date of the proof. Although in many respects their evidence coincided, there were a number of material discrepancies. In deciding whose evidence to accept, I have come to the view that the evidence of John Taylor is preferable to that of the other witnesses. I say this, not because they were prisoners and he was a prison officer, but because they appeared to me to be making a concerted effort to give evidence favourable to the pursuer regardless of whether it was true or not. This was particularly so in the case of Patrick Flynn, whose motivation, in addition to the characteristics I have already mentioned, appeared to me to help the pursuer, because he had mistakenly assaulted him. John Taylor impressed me as a truthful and reliable witness. He was an experienced prison officer, who gave what appeared to me to be a level-headed account of the incident. I therefore rely principally on his account.

John Taylor was standing at the corner in the cookhouse hall where prisoners following the route from the accommodation halls to the worksheds turned right. He could keep watch in both directions. Members of the "garden party" were standing near the cookhouse door. Patrick Flynn passed John Taylor and then stopped. John Taylor turned and told him to move on. Patrick Flynn said that he was waiting to speak to another prisoner. He then spoke to another prisoner and thereafter John Taylor was under the impression that he had left. Unobserved by John Taylor, Patrick Flynn remained loitering near the point where the corridor leading to the worksheds opened out of the cookhouse hall. He was in the cookhouse hall for a total of about one minute, including the time when he was speaking to John Taylor and to the other prisoner. For the short time that Patrick Flynn was loitering there, John Taylor's attention was on what he described as stragglers coming along the corridor from the accommodation halls. They turned right at the corner and passed through the cookhouse hall. As they were leaving it to go up the steps and along the corridor to the worksheds Patrick Flynn stepped forward, asked for a word with the pursuer, and then assaulted him. He pulled the pursuer's clothing over his head and struck him about the head and body. The pursuer realised that he was holding a knife, but no other witness was aware of the knife at this stage. Alan Boyd seized hold of Patrick Flynn by the neck from behind in an effort to restrain him, and William Gray also joined the fray. John Taylor saw what was happening and rang an alarm bell which was situated a short distance from where he was standing. By that time it appeared to him that, although Patrick Flynn had initially attacked the pursuer, he had himself come under attack. John Taylor seized hold of the pursuer by the waist in order to separate him from Patrick Flynn, and handed him over to another prison officer to take him away along the corridor leading to the accommodation halls. He then closed the sliding gate at the opening to this corridor in order to prevent other prisoners from entering the cookhouse hall and joining the fight. When John Taylor turned back, other officers who had been in the corridor leading to the worksheds were entering the cookhouse hall, but Patrick Flynn had run away. He only discovered some time later that the pursuer had been injured by a weapon.

In accepting this narrative, I reject as untruthful various assertions which were made by some of the witnesses. I do not accept that Patrick Flynn was in the cookhouse hall for a period of considerably longer than one minute before he attacked the pursuer. Although John Taylor accepted with hindsight that he should have made sure that Patrick Flynn had moved on, I do not think that he would have overlooked the fact that Patrick Flynn was loitering for more than a very short time. Moreover, I do not accept that more than one prison officer took hold of the pursuer while he was being separated from Patrick Flynn and restrained him in such a way that Patrick Flynn was able to continue his attack while the pursuer was unable to defend himself. On the contrary, Patrick Flynn did not strike any blow after John Taylor had seized hold of the pursuer by the waist. Accordingly, the blow which caused the pursuer's eye injury was inflicted, not while the pursuer was under restraint, but during the initial attack.

Despite there being more extensive averments of fault in the pursuer's pleadings, counsel for the pursuer confined himself to three respects in which, as he submitted, there had been negligence. I shall discuss each of these in turn. Firstly, counsel submitted that there had been negligence which enabled Patrick Flynn to be in possession of the makeshift knife. He submitted that the very fact that a knife had been manufactured and remained in currency without detection "required an answer". The situation was not quite one of res ipsa loquitur. Counsel accepted, however, that notwithstanding the exercise of reasonable care, prisoners could, as he put it, sneak knives through. Counsel did not dispute that there was a system in place, which I have already outlined. He submitted, nevertheless, that there should have been more searches, and more equipment should have been installed. I do not accept this submission. There appears to me to be no evidential basis for it. As I have said, a system was operated. No doubt, from time to time, prisoners were able to defeat the system. But that does not of itself mean that the system was negligently operated. No doubt, in the light of experience, the system was improved from time to time, for example by the installation of the metal detecting equipment to which I have referred. But that does not of itself establish that prior to such improvements the system was so defective as to yield the inference of negligence. Moreover, without acceptable evidence as to how Patrick Flynn smuggled the makeshift knife past the various searches, if indeed he did so, I can see no scope for holding either that the system was in itself defective or that it was defectively operated in any particular respect. The situation in a prison is a great deal more complex than counsel for the pursuer recognised in his submission. The problem of contraband of various kinds is notorious, and the prison authorities must be expected to do what they reasonably can to address it. But in doing so they have to take account of the interests of the prisoners themselves. Systems of the kind under discussion must therefore be devised and operated in a way which exercises the requisite control over the prisoners without infringing their individual interests to any greater extent than is reasonably necessary. No attempt was made to explore these issues in the evidence, and I am not willing to proceed on the basis of mere assertion about measures which might have prevented Patrick Flynn from having the makeshift knife in his possession.

Secondly, counsel submitted that there had been negligence in the operation of the system which applied when prisoners were following the route from the accommodation halls to the worksheds. He submitted that the system should have required prisoners to proceed in single file and without stopping. The fact that prisoners were able to go in groups, and that Patrick Flynn had been able to loiter, pointed, in his submission, to a laxness in the system; there was negligence when a strict regime was allowed to soften. I reject this submission. Some of the same considerations as I have discussed in the preceding paragraph arise again in this context. Audrey Park explained that a certain amount of tolerance was allowed, to enable prisoners to speak to their friends and so on. Subject to this, anyone seen loitering would be told to move on. There is no evidence which would allow me to hold that this approach was negligent. I have already pointed out that there was no evidence to support the averments about a previous history of violence on the part of Patrick Flynn. Entirely different considerations would arise if a prisoner with a known history of violence towards other prisoners was able to loiter without being moved on, all the more so if he was known to be ill-disposed towards an individual prisoner who might be exposed to attack. But these considerations do not arise in the present case, and there was no reason to regard Patrick Flynn as posing any particular risk of violence towards other prisoners, including the pursuer. John Taylor's acceptance that with hindsight he should have seen that Patrick Flynn had moved on does not, in my opinion, add to the pursuer's case, a necessary element of which must be that it was reasonably foreseeable that it was likely that otherwise he would attack another prisoner.

Thirdly, counsel submitted that there had been negligence on the part of the prison officers in failing to intervene properly in the fight once it had taken place. I have considerable reservations about this submission, because counsel did not address me on the criteria for establishing negligence in a situation in which the person in question has to take decisions in the face of a sudden emergency. A prison officer who is suddenly faced with an outbreak of fighting among prisoners needs to take rapid decisions about a number of matters, including his own safety and the safety of the prisoners, and the taking of what can with hindsight be seen as a wrong decision in the heat of the moment does not of itself establish negligence on his part. This submission was predicated on my accepting that the pursuer was restrained by two prison officers and that thereafter Patrick Flynn struck the blow which injured the pursuer's eye. As I have already said, I do not accept that this happened. There is thus no factual basis upon which the submission can be based. In any event, even if this had happened, I would not have been prepared to hold that the prison officers in question were negligent without hearing evidence as to what would, for example, be regarded as normal practice or what the officers were trained to do in a situation of that kind.

For these reasons the pursuer has, in my opinion, failed to establish any negligence on the part of those for whose actings the defender is liable, and I shall accordingly sustain the second and third pleas-in-law for the defender and assoilzie him.