Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [20102011] CSOH NUMBER90
A1030/2008	OPINION OF LORD BRODIE in the cause ANN THOMSON Pursuer; against THE SCOTTISH MINISTERS Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Di Rollo Q.C., Divers; Drummond Miller LLP (for Ross Harper, Solicitors, Glasgow)

Defender: Moynihan Q.C., McBrearty; Anderson Strathern LLP, Solicitors

26 May 2011

Introduction

[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 wound 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 two 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 Article 2 of the European Convention on Human Rights, failed to protect the deceased's life. The pursuer seeks funeral costs, as provided by Section 1(c) of the Damages (Scotland) Act 1976. She also makes a claim under reference to Section 1(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 Ministers 2007 SLT 113, Lord Hope at paragraphs 41 to 48 and Lord Rodger at paragraphs 134 to 144. Neither do the Scottish Ministers take any point on time bar under reference to Section 7(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	Description
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 of 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 United Kingdom, 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 the following:

"3(1) Following receipt of an application for short leave or winter and summer leave in terms of Rule 120 of the Rules, the Governor shall -

(a) check that the prisoner is an eligible prisoner;

(b) obtain such reports as are necessary in order to consider the prisoners suitability for home leave;

(c) obtain a report on the suitability of the premises at which leave is proposed to be taken.

(d) consider whether the criteria applicable to the granting of such leave are satisfied; and

(e) assess the risk that the prisoner may abscond and/or present a danger to the public.

(2) The Governor shall record his decision and the reasons for it in writing.

(4) For the purposes of rule 120(2) of the Rules, the relevant criteria are -

(a) that the reports obtained by the Governor in terms of paragraph 3(1) of the Direction are satisfactory: and

(b) that the prisoners conduct in custody has, in the last six months prior to his application, been of a consistently high standard".

The Pursuer's Averments of Fact

[5] The pursuer avers that the assaults to severe injury and permanent disfigurement in respect of which Campbell had been sentenced on 27 August 2002 had been committed against his estranged wife and her friend within his wife's home. At the time of sentence the trial judge noted in his report that Campbell had 20 court appearances in respect of 36 offences over the period between 3 December 1987 and 6 July 2001. In particular it was noted that he had been convicted at Glasgow High Court on 20 January 1998 of an assault and robbery and a contravention of s17section 17(2) and (5) of the Firearms Act 1968 and was sentenced to 4 years and 3 years imprisonment concurrently in respect of each offence. That offence had been committed while Campbell was released on licence in respect of a previous custodial sentence, which offence itself had been committed on licence. Campbell was released on licence from his 4 year sentence on 8 March 2001. His licence was revoked on the 8 May 2001 following his appearance at Glasgow Sheriff Court on charges of breach of the peace and possession of a lock knife. He was again released on licence on 1 May 2002. On 10 May 2002 while on licence he committed the offences for which he was sentenced in August 2002. Campbell had been remanded at HMP Barlinnie. On 24 September 2002 he was transferred to HMP Kilmarnock. There he was assessed in terms of the Rules as being subject to high supervision. The pursuer avers that Campbell should have remained at the high supervision level, at least until December 2004. She goes on to aver that Campbell did not and at no time later met the criteria for transfer to the Open Estate, that it was not and would not have been safe to allow him to be released on short-term leave and that if was released he would be likely to commit serious acts of violence upon members of the public. Notwithstanding this assessment the pursuer goes on to explain in her averments that in May 2005 Campbell was transferred to HMP Friarton, Perth. In July of that year he was transferred to HMP Castle Huntly which is an open prison. On arriving at Castle Huntly, Campbell applied for short term leave. This leave would allow him to visit his home or other approved place for a period not exceeding three days. A prisoner with a low supervision level is entitled to make such an application. The pursuer avers that if the Rules had been properly applied to Campbell he would not have been entitled to make such an application. On receiving such an application the Governor should, inter alia, obtain such reports as are necessary in order to consider the prisoner's suitability for leave and assess the risk of the prisoner presenting a danger to the public. The Governor is supposed to record the reasons for his decision in writing. On 8 August 2005 the Governor of HMP Castle Huntly approved Mr Campbell's application for short term leave. No assessment was carried out by or on behalf of the Governor, which assessed the risk that Campbell might pose to the public if released from prison at this time. The Governor did not record the reasons for his decision to grant leave in writing as he should have done. Any It is averred that proper assessment of the risk posed by Campbell would have found and taken into account that:

(1) He had a history of significant violence, including convictions for firearms offences, assault and robbery, assault to severe injury and permanent disfigurement;

(2) He had issued threats to inflict violence on his victims by letter while in prison;

(3) He was a prolific offender;

(4) He was a diverse offender;

(5) He repeatedly did not comply with legal orders designed to regulate his behaviour and had on numerous occasions breached bail and licence;

(6) There was a significant history of drug offences while in prison;

(7) There was a significant history of substance abuse while at liberty;

(8) The history of substance abuse was relevant to future risk since he was intoxicated when he inflicted violence in the past;

(9) He was persistently unwilling to cooperate with programmes to assist him in particular anger management and problem solving; and

(10) He had attempted to hang himself in or about January 2003.

All of these risk factors were apparent in or about August 2005. No consideration was given to any other risk factors including mental illness, personality disorder and psychopathy. If the risk had been assessed as it should have been it would have been found that there was an unacceptable risk that Campbell would behave violently during short term release. Campbell had a positive drug test on 11 August 2005. In light of this positive test, no reassessment of risk for leave was carried out. On the 18 August 2005, Campbell met with the Deputy Governor for a routine review of the grant of leave. In light of the positive drug test, the Deputy Prison Governor imposed a penalty of loss of next home leave suspended for two months. No assessment of risk for the impending home leave was carried out. Campbell was released from prison the following day.

Submissions

[6] I was addressed both by junior and senior counsel for each of the parties. Their respective submissions followed the Notes of Argument which had been lodged prior to the debate and to which, together with a written submission which senior counsel for the defenders provided in the course of the hearing with a view to expediting his presentation, I would refer. The defenders' motion was for dismissal of the action. The pursuer's motion was for allowance of proof before answer. What follows is a summary of what was put forward in support of parties' respective positions.

Defenders' submissions: junior counsel

[7] Junior counsel for the defenders moved for dismissal. He noted that the pursuer made two cases: first, a common case alleging negligence in the series of decisions which downgraded Campbell's supervision level to low, in the decision on 8 August 2005 to grant Campbell temporary release by way of short leave, and in the decision not to revoke the grant of leave when it was reviewed on 18 August 2005 notwithstanding Campbell's positive drug test; and, second, a breach of Article 2 of the European Convention on Human Rights. It was submitted that both cases were irrelevant: the common law case because there was not the requisite degree of proximity as between the defenders and the deceased with the result that no duty was owed and, separately, because the pursuer's averments failed to demonstrate, with proper specification, that the decisions complained of fell outwith the band of decisions open to a discretionary decision-maker; the Article 2 case because the pursuer had failed to aver that at the time of his release Campbell presented a real and immediate threat to life.

[8] The starting point for counsel's first line of attack on the common law case was the decision of the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605. There Lord Bridge had put forward a synthesis (the "tripartite test") which has become the most relevant test for determining the existence of a duty of care by reference to the requirement of foreseeability of damage, a relationship characterised by the law as one of "'proximity' proximity" or 'n "eighbourhood'neighbourhood", and the consideration that it should be fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other; but he had acknowledged that it might be necessary to consider traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes: Mitchell v Glasgow City Council [2009] SC (HL) 21. There was no single common denominator, the tripartite test being one that operated at a high level of abstraction, circumstances and context were important: Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, Hines v King Sturge LLP 2011 SLT 2. The present case was not novel. It fell within a recognised category of case: the general category being liability for the deliberate wrongdoing of an independent third party and the sub-category being liability of a public authority having some degree of control over the offending third party. That an independent third party caused the relevant harm was not fatal to a claim against a public authority but there had to be a sufficient relationship of proximity to establish a duty of care owed by the public authority to the claimant. Sufficient proximity was essential. A duty to the public at large was not enough; there had to be particular circumstances giving rise to an additional degree of risk over and above that faced by the public at large: Maloco v Littlewoods 1987 SC (HL) 37, Lord Goff at 79. One such circumstance is would be the fact that the defender is responsible for controlling the third party where a failure to exercise that control gives rise to an immediate and obvious risk to the pursuer: Dorset Yacht Co. Ltd. v.v Home Office [1970] AC 1004 at 1034, 1054 and 1068 to 1071, Clerk & Lindsell On Torts (20^th edit) at para 14-43, Charlesworth & Percy On Negligence (12^th edit) at paras 2-88 and 2-304, but to give rise to a duty of care there had to be a particular risk of harm being inflicted by the third party on the person to whom it is said that a duty is owed. This is illustrated and emphasised in a line of cases where the facts were to some extent analogous to the present and where the principle was applied: Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, Palmer v Tees Health Authority [2000] PNLR 87 at 89, 96, 100 and 108, K v Secretary of State for the Home Department [2002] EWCA Civ 775, [2002] Police Law Reports 161, Akenzua v Home Secretary [2003] 1 WLR 741 at 749 and 751, Mitchell v Glasgow City Council 2009 SC (HL) 21, Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, NSW v Godfrey [2004] NSWCA 113, and Couch v Attorney General [2008] 3 NZLR 725. Counsel for the defenders recognised that in two cases which were cited: Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 and O'Dwyer v Chief Constable of the Royal Ulster Constabulary [1997] NI 403, both of which related to harm done by police officers using firearms, claims had been allowed based on quite wide duties to the public at large but, taking these cases to have been correctly decided, they did not detract from the general applicable principle which was that a duty to the public, and no more than that, can never be enough.

[9] However, even should it be thatif the pursuer in the present case could establish a sufficient degree of proximity, regard had to be had to the fact that what was complained of was a series of decisions made in exercise of a discretion. For relevancy it was necessary that she the pursuer offer to prove that the decisions of which she complained were outwith the range of decisions available to a decision maker in the exercise of what was a discretion: Dorset Yacht Co. Ltd. v.v Home Office supra at 1021 and 1068 to 1069, K v Secretary of State for the Home Department supra at para 9, X v Bedfordshire County Council [1995] 2 AC 633 at 736 to 737, Stovin v Wise [1996] AC 923 at 946. The pursuer therefore had to aver precisely how it was that the decisions that she criticised fell outwith the ambit of a reasonable exercise of discretion. This she had failed to do.

[10] The pursuer's Article 2 case proceeded upon the basis that the defenders, as a public authority, had failed to protect the deceased's right to life. Counsel for the defenders accepted that in addition to its obligation to refrain from taking life the state had an obligation to take appropriate steps to safeguard life within its jurisdiction: Osman v United Kingdom (1998) 29 EHRR 245. That required the putting in place of a criminal law backed by of a system for law enforcement but it also required the provision of operational measures to protect someone whose life was at risk from another. However, not every threat to life engages Article 2. The obligation on the state to take preventive action only arises where there is a real and immediate risk to life. In Osman what was in issue was risk to an identified individual or individuals. Counsel accepted that in subsequent cases the European Court of Human Rights had been prepared to entertain applications where the risk was to the life of members of the public at large: Mastromatteo v Italy (app. 37703/97) 24 October 2002, and Maiorano v Italy (app 28634/06) 15 December 2009. In the latter case the Court had found there to have been a contravention of Article 2 where a prisoner with a long and significant criminal career, which included abuse of home leave from prison by using the opportunity to plan the murder of the president of the court which had the jurisdiction to supervise his sentence, had been liberated on parole and had murdered the wife and daughter of a fellow prisoner. However, these post-Osman cases did not depart from the requirement that there had to be a real and immediate risk to life before the state fell under an obligation to take operational protective steps. The United Kingdom cases illustrated the stringent nature of the threshold: Van Colle v Chief Constable of Hertfordshire supra at 256, 269, 281, Savage v South Essex NHS Trust [2009] 1 AC 681 at 702, Mitchell v Glasgow City Council supra at 24 to 25 and 35. The pursuer's pleadings did not disclose that at the time of his release Campbell presented a real and immediate threat to life. The high point was the averment, at page 15A of the Record, that "there was an unacceptable risk that Campbell would behave violently during his short term release." The Article 2 case was therefore irrelevant.

[11] Junior counsel for the defenders finally drew attention to the pending appeal to this Court from the Sheriffdom of Glasgow and Strathclyde at Glasgow in the case of Kevin Ruddy v The Chief Constable of Strathclyde Police (now the subject of an opinion on competency:
[2011 CSIH 16)2011 SLT 387) where remarks from the bench at a By Order hearing had suggested that that case, which had some similarities to the present, should have proceeded by way of judicial review rather than by way of an action for damages for personal injury: cf Sidey v Clackmannanshire Council 2010 SLT 607. As far as the present action was concerned, the defenders did not dispute that it was properly raised as an action for damages and accordingly did not take any point on competency.

Pursuer's submissions: junior counsel

[12] Junior counsel for the pursuer began by noting that there was no challenge as to the foreseeability of Campbell, who was a violent recidivist, acting as he had done. Rather, the argument effectively was that a party in the defenders' position had immunity from suit. Counsel accepted that generally there was no liability for the act of a third party but this was a case where the defenders had had control over the third party and therefore had, by releasing him, created the relevant hazard, a situation equivalent to that in Attorney General of the British Virgin Islands v Hartwell, Mitchell v Glasgow City Council supra, Lord Hope at 29, and Dorset Yacht Co Ltd v Home Office [1969] 2 QB 412 Lord Denning MR at 424 to 427. It was counsel's position that it was sufficient for a duty to be owed that Campbell posed an immediate risk to the public at large, by which he meant the public throughout Scotland. Palmer v Tees Health Authority could be distinguished. There the murder had been committed a year after the relevant discharge from hospital. It was a case of pure omission. As was illustrated by O'Dwyer, there will be exceptional cases of a duty being held to be owed to the widest possible class where the risk is both serious and immediate. What brought the present case into the category of being exceptional was that the risk was immediate, it was serious, it was known to the public authority and yet the authority did something (releasing Campbell) which created the hazard. The wide reach of the duty contended for was proportionate to the gravity of the risk: Attorney General of the British Virgin Islands v Hartwell supra Lord Nicholls at 1282. Counsel accepted that there was a line of authority from Dorset Yacht, through Hill which did restrict recognition of the existence of a duty of care to cases where it could be said that there was an identifiable person or group at risk but, as O'Dwyer and Hartwell demonstrated, there were exceptions. This case was one such.

[13] Turning to the second line of attack on the common law case, junior counsel for the pursuer accepted that it was necessary to show that the decisions complained of were so unreasonable that they did not fall within the ambit of the statutory discretions conferred on the officials for whom it had been conceded for the purposes of this litigation that the defenders were liable. However, the decisions on Campbell's status were tainted by the erroneous alteration to medium supervision on 8 May 2003. In terms of paragraph 3 (4) (b) of the defenders' directions made on 11 February 2005 a grant of short leave was dependent on his a prisoner's conduct being of a consistently high standard for the preceding 6 months. It was averred that no assessment of risk was carried out by or on behalf of the Governor who approved Campbell's application for leave on 8 August 2005. The decision not to revoke the grant of short-term leave was made notwithstanding a positive drug test.

[14] As far as the Article 2 case was concerned, counsel accepted that in order to found a case of breach there had to be real and immediate risk to life. He also accepted that there was no express averment to that effect. There were however the averments at pages 11D to 12 A, 13C, 15A and 20D of the Record, narrating Campbell's criminal history, stating that if released he would be likely to commit serious acts of violence upon members of the public, stating that there was an unacceptable risk that Campbell would behave violently during short term release, and stating that he presented a real and immediate risk of danger to the public.

Defenders' submissions: senior counsel

[15] Senior counsel adopted the submissions of junior counsel. The most relevant test for the existence of a duty of care was that set out in Caparo and endorsed for Scotland in Mitchell. There may be liability for the fault of an independent third party in special circumstances but only where harm is suffered by someone at special risk from the third party. The continuing need for proximity in what counsel referred to as the Dorset Yacht sub-set of cases had recently been affirmed by Lord Brown of Eaton-under-Heywood in Mitchell. This represented a line of House of Lords authority that had been consistently applied in the English Court of Appeal and in Commonwealth cases. O'Dwyer was not inconsistent with this line, albeit it was not a case that has been frequently cited in the reports, if at all. The pursuer did not argue that this case law was wrongly decided but contended for an exception where the gravity of the risk supplies the necessary nexus between the pursuer and the defenders. Such an argument had been rejected in Palmer and in K v Home Office. Hartwell did not assist as it expressly turned on the fact that providing access to a gun justified widening the class of those to whom a duty was owed. Insofar as the choice lay between the reasoning of Lord Denning when Dorset Yacht was before the Court of Appeal and that of Lord Diplock when the case was in the House of Lords, the latter should be preferred, it having been applied in Hill. Senior counsel relied on what Lord Diplock had said about the risk of violence being shared by the public as a whole and the arbitrariness of allowing compensation for damage caused by a criminal who has escaped from custody but not one who had been lawfully released or one given a suspended sentence or one who was never apprehended at all. Counsel accepted that an element within any custodial sentence was the protection of the public but so was rehabilitation, something which was intended to be promoted by exercise of the option of temporary release: Mastromatteo.

[16] Even if proximity could be demonstrated in the present case it was senior counsel's submission that the pursuer had failed to plead a relevant case of wrongful exercise of the statutory discretions to alter supervision levels and grant temporary release. It came to be a point of specification. It was not clear what the pursuer's case was. Nowhere was there any specification of any breach of the law. Any error in May 2003 had been the subject of three subsequent reviews. There was no averment that any subsequent review proceeded on an error of fact. Was it the pursuer's position that Campbell was ineligible for short-term release, or that there had not been a proper exercise of discretion because a material consideration had been left out of account or that the exercise had been wholly unreasonable in a Wednesbury sense? Counsel took no point as to it not being foreseeable that an error in assigning a supervision level would result in harm to a member of the public but, he submitted, the assigning of supervision level aspect of the case was irrelevant, firstly, because it is not averred as to how the decisions in May 2003 and thereafter were contrary to the Rules and, secondly, because the pleadings relied on the error in assigning a medium supervision level in May 2003 but there was no averment as to how subsequent reviews were carried out and therefore as to how the earlier error was carried forward into subsequent reviews. As far as the aspect of the case which related to the decision to grant short-term leave was concerned it was not clear what case the defenders had to meet. There was nothing averred to suggest that in the period of 6 months prior to that decision that Campbell's conduct had been other than of a consistently high standard. As far as the disciplinary hearing on 18 August 2005 was concerned, contrary to the assumption in the pursuer's pleadings there was no statutory requirement for the Deputy Governor to reconsider the previous grant of home leave. There was a lack of specification as to the basis upon which the pursuer asserted that Campbell "would be likely to commit serious acts of violence upon members of the public" if released. The common law case was predicated on an "inadequate risk assessment process". There was no specification as to what would be the content of an adequate assessment. The pursuer's pleadings did not adequately engage X v Bedfordshire County Council, given that a decision in the range of acceptable exercises of discretion cannot be unlawful. It was not enough to say that the defenders did not exercise reasonable care. It was necessary to say that the decisions complained of fell outwith the relevant statutory discretion.

[17] There was no dispute as to the applicable law bearing on the Article 2 case: what was relevant was the Osman test of real and immediate danger to life. The Osman test did not require danger to an identified individual: Mastromatteo. The operational duty to protect citizens was owed to the public at large but in the absence of real and immediate danger there was no operational duty owed. As appeared from the House of Lords cases of Mitchell, Savage and Van Colle, the test meant what it said. It was understandably high. It was no accident that there was no averment in the present case of real and immediate danger. The possibility of violence or even risk to life was not enough. There must be a real, in the sense of objectively justifiable, apprehension of risk to life and it must be immediate. That was not averred.

Pursuer's submissions: senior counsel

[18] Senior counsel's motion was to allow proof with all pleas standing. The argument on duty of care gave rise to the question as to whether a prison authority could ever be liable where it takes a positive decision to allow the short-term release of a violent dangerous prisoner in its custody, without proper regard to the risk that he may during his the period of his release period pose a significant danger of serious injury or death to a members of the public. Counsel accepted that there was no reported case where a duty had been found to exist in similar circumstances other than Couch v Attorney General, but there were particular features of the present case which supplied such nexus or proximity as was necessary: the authority was blamed for a positive act not an omission, the decision to release involved exposing the public to a risk to which they were not otherwise exposed (at least for the time being) and the authority had a specific responsibility for the protection of the public. The decision for the court was whether a right of action arose if a prison authority released a dangerous prisoner who went on to harm someone who could not have been previously identified as being at particular risk, either as an individual or as a member of a particular class. That there should be such a right of action would be readily understandable to members of the public. A prison authority should only release prisoners when entitled to do so. Counsel did not say that the protection of the public was the only consideration when considering early release but it should be at the forefront of decision-making and here the defenders did not aver that the reason for releasing Campbell was to do with his rehabilitation. Assigning the appropriate supervision level was part of the process of protecting the public. The pursuer could not say that the release of Campbell put any specified individual at risk but why should this matter? There was, said counsel, a paradox: the wider and in that sense the greater the risk, the less chance was there of there being held to be a duty. Could it really be said that deciding on the early release of a notorious serial killer could never give rise to a duty of care because it was impossible to identify who might be his future victim? There was no policy argument put forward by the defenders and no good policy informed a rule which insisted on the ability to find a relationship of proximity as between such a dangerous criminal and his eventual victim.

[19] As for what had come to be a criticism of the specification offered in the pursuer's pleadings, counsel did not dispute that the case was of failure properly to exercise discretion but the averments were tolerably clear. They need not be further spelled out. He drew attention to what was said at page 14 of the Record.

[20] Turning to the criticisms of the case of contravention of Article 2, senior counsel accepted that the pursuer would have to prove that the Governor ought to have appreciated "Campbell could well kill someone". Counsel accepted that this was a high test but the pleadings came up to it. Parties were at one as to the case that the pursuer had to make. She should be allowed to do so.

Discussion

Negligence: duty of care

[21] In her pleadings the pursuer points to a series of decisions which for present purposes are accepted as being the responsibility of the defenders and which had the result that Campbell was in Glasgow and at liberty on 22 August 2005 when he murdered the pursuer's daughter. As a serving prisoner Campbell was someone whose liberty the defenders were entitled to restrict. The pursuer can therefore say that the defenders caused her daughter's death in the sense that but for a series of decisions (or, at least, the later decisions in the series), each of which she criticises as having been reached without due care, Campbell would not have been at liberty and therefore could not have killed the deceased. For present purposes at least the matter goes further. In the debate before me the defenders' counsel did not seek to challenge the relevancy of the pursuer's averments as to the reasonable foreseeability of Campbell making a fatal attack such as he made on the deceased and no point was taken as to the foreseeability of an error in assigning a supervision level resulting in harm to a member of the public. However, a causal relationship between a decision or decisions (or any other sort of act or omission) for which A is responsible and harm suffered by B does not, of itself, give rise to a liability on A to make reparation to B. That remains the case even if it can be said that there was a lack of care in making the relevant decisions and that is so even if the harm can be said to have been a reasonably foreseeable consequence of A's act or omission. Where B's harm is caused by A's negligence then there will be liability to make reparation but, lack of care, by itself, does not amount to negligence, which is the first of the two bases upon which the pursuer here seeks damages. The point is made by Lord Macmillan in Donoghue v Stevenson 1932 SC (HL) 31 at 70:

"The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence."

Later on the same page of the report he goes on:

"The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between parties as to give rise, on the one side, to a duty to take care, and, on the other, to have care taken."

In the speeches of the majority in Donoghue v Stevenson there is the attempt to enunciate a principle of general application in order to determine "what circumstances will establish such a relationship" on the view that, as it is stated by Lord Atkin supra at 44: "there must be, and is, some general conception of relations giving rise to the duty of care, of which the particular cases found in the books are but instances." Lord Atkin then goes on state that general conception or principle in terms which have become very familiar:

"The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

As Lord Atkin then explains, the "neighbour" to whom a duty is owed is someone who is in a sufficiently close degree of "proximity" (an expression taken from the judgment of A. L. Smith, L.J in Le Lievre v Gould [1893] 1 QB 491 at 504) where proximity is "not confined to mere physical proximity, but ... [extends] to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his act": Donoghue v Stevenson supra at 45. Hence, in Hill v Chief Constable of West Yorkshire supra at 60 Lord Keith said this:

"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present."

In Hill Lord Keith went on to identify, the "further ingredient [which] is invariably needed to establish the requisite proximity of relationship" by reference to a passage in the speech of Lord Diplock in Dorset Yacht Co Ltd v Home Office supra at 1070, which was emphasised in the argument before me:

"To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee's sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape 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 context in which Lord Diplock emphasised the requirement for "some relationship ...which exposes [a] person to a particular risk of damage", an expression which is elsewhere rendered as "neighbourhood", "proximity" or "nexus", before there can be a duty of care owed by the person responsible for an act or omission to a person who suffers damage as a result of that act or omission was that the House of Lords in Dorset Yacht, when affirming the judgment of the Court of Appeal, was innovating on English law as it had previously been understood. As Lord Denning MR had said when the case was in the Court of Appeal ([1969] 2 QB 412 at 426D):

"Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities have been found liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities such as to find a place in the reports."

In a passage immediately preceding the one that I have just quoted from his speech in Dorset Yacht, Lord Diplock explained why this might be or at least why this was not unjust:

"It is common knowledge, of which judicial notice may be taken, that Borstal training often fails to achieve its purpose of reformation, and that trainees when they have ceased to be detained in custody revert to crime and commit tortious damage to the person and property of others. But so do criminals who have never been apprehended and criminals who have been released from custody upon completion of their sentences, or earlier pursuant to a statutory power to do so. The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all."

And therefore, while Lord Diplock did accept that there was a duty owed to the plaintiffs in the the Dorset Yacht case it was only because of the proximity brought about by these particular plaintiffs being at special, as opposed to general, risk of harm from the absconding Borstal boys. Thus while there was a duty owed to the limited group of those at particular risk of injury, no duty was owed to the wider group which is the general public. As Lord Diplock put it:

"So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody. I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."

[22] The claim in Hill was at the instance of the mother and personal representative of one the victims of Peter Sutcliffe, the "Yorkshire Ripper". She averred that the circumstances of each of the 20 offences committed by Sutcliffe before the murder of her daughter were such that it was reasonable to infer that all were committed by the same man and further that it was foreseeable that, if not apprehended, he would commit further offences of the same nature. The pleadings went on to allege that it was accordingly the duty of the defendant chief constable and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims. Applying the law as laid down in Dorset Yacht to the circumstances in Hill, Lord Keith said this (at 62):

"The Dorset Yacht case was concerned with the special characteristics or ingredients beyond reasonable foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his doing harm to a third. The present case falls broadly into the same category. It is plain that vital characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are here lacking. ... Miss Hill was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public. The same rule must apply as regards failure to recapture the criminal before he had time to resume his career. In the case of an escaped criminal his identity and description are known. In the instant case the identity of the wanted criminal was at the material time unknown and it is not averred that any full or clear description of him was ever available. The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police."

[23] That the law continues to be that a duty of care that might be suggested by considerations of foreseeability alone will be circumscribed by the additional requirement of sufficient proximity appears from the formulation of the tripartite test in Caparo and the recent affirmation of that test for Scotland: Mitchell v Glasgow City Council supra at para 25. At paras 14 et seq of his opinion in Mitchell Lord Hope considered the contention on behalf of the pursuers that there had been an operational failure by the defenders in circumstances where it was reasonably foreseeable that harm would flow to the deceased if they did not warn him about their meeting with
[the man who went on to kill the deceased]. The pursuers' pursuer's case was that there was a duty to warn, and that this duty arose because harm to the deceased was reasonably foreseeable. Lord Hope set the scene for what follows in para 15 of his opinion:

"Three points must be made at the outset to put the submission into its proper context. The first is that foreseeability of harm is not of itself enough for the imposition of a duty of care (see, eg Dorset Yacht Co Ltd v Home Office, per Lord Morris of Borth-y-Gest, pp 1037, 1038; Maloco v Littlewoods Organisation Ltd (also reported as Smith v Littlewoods Organisation Ltd ), per Lord Griffiths, p 59; Hill v Chief Constable, West Yorkshire , per Lord Keith of Kinkel, p 60). ... The second, which flows from the first, is that the law does not normally impose a positive duty on a person to protect others. As Lord Goff of Chieveley explained in Maloco v Littlewoods Organisation Ltd (p 76) the common law does not impose liability for what, without more, may be called pure omissions. The third, which is a development of the second, is that the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability (Maloco v Littlewoods Organisation Ltd, per Lord Goff, pp 77-83).

A similar insistence that foreseeability is but one of the necessary elements before there can be a duty of care is found in the opinion of Lord Brown of Eaton-under-Heywood in passages, at paras 80 and 82, to which my attention was drawn by Mr Moynihan:

"80. ...Naturally one assumes that the attack was reasonably foreseeable by the landlord - without that, there could be no question of liability. So much is trite law. But more is required.....

82. A may also be liable for C's crime where he is under an obligation to supervise C and fails to do so: Dorset Yacht Co Ltd v Home Office, where Borstal boys escaped (and caused damage in the vicinity while escaping: important because proximity too is a necessary condition of liability in these cases)...."

[24] The pursuer's counsel in the present case took no issue with the propositions that for the pursuer to have a right of action against the defenders there must have been a duty of care owed by those for whom the defenders accepted responsibility to the deceased and that that required a nexus or degree of proximity which simply being a member of the public resident in Scotland during the period of Campbell's home leave did not provide. The Counsel did not argue that the deceased was not in a position analogous to that of the plaintiffs in Dorset Yacht v Home Office and indeed counsel went the distance of saying accepted that there was no reported case where a duty had been found to exist in circumstances similar to those founded on here other than the New Zealand case of Couch v Attorney General.

However, so counsel argued, a rule, derived from the need for proximity, that for there to be a duty of care to prevent someone being injured by the act of a third party the person to whom it is owed must be at risk of harm which is in someway special to him and not simply a risk that he shares with the rest of the public, was not logical. Why should it matter that no identifiable individual was at risk? As Mr Di Rollo pointed out, the requirement gives rise to what might be described as "the Hannibal Lecter paradox". I borrow the reference to this fictional character from the judgment in Akenzua v Home Secretary supra at 750D. In Akenzua the claim was founded on the tort of misfeasance in public office and not negligence. The claim had been struck out in the court below because of insufficient proximity between the victim of a murder and the officer who had unlawfully freed the murderer from detention. The Court of Appeal allowed the plaintiff's appeal. The Court could see no reason why liability for misfeasance (negligence was different) should only arise where the public officer, had he turned his mind to it, could actually have identified just which person or persons would be harmed. At para 16 of his judgment Sedley LJ put forward two paradigm cases:

"(A) A public official corruptly arranges the liberation of a man serving a sentence for attempting to murder his wife, knowing that he will make a further attempt to kill her if allowed to do so. On his release the man finds his wife and kills her.

(B) A public official corruptly arranges the liberation of a man serving a sentence of imprisonment for terrorist bombings, knowing that he will resume his activities if allowed to do so. On his release the man places a bomb in a public place and kills several people. "

At para 18 Sedley LJ continued:

"Neither defendant's counsel has been able to explain either the logic or justice of making case A actionable and case B not... Mr Blake, for the claimants, submits that if, as is conceded, case A is actionable as misfeasance in public office at the suit of the victim, so must case B be; and in my judgment he is right."

It was Simon Brown LJ (as he then was) who introduced the character of Hannibal Lecter, at para 33 of his judgment:

"Take, too, an example which I myself raised in argument, initially in K v Secretary of State for the Home Department [2002] EWCA Civ 775 (a case brought in negligence) and then again in our case: that of the release (negligently or corruptly) of someone like Hannibal Lecter (merely a more extreme case on the facts than here or in K). Why should liability depend not merely on the predictability of harm but on the predictability of who precisely would suffer it? The claim in K necessarily failed because in negligence there remains the need to show proximity (meaning closeness of a relevant kind between the parties) as a separate requirement of the duty of care. I see no good reason, however, to introduce proximity by the back door into the tort of misfeasance."

Neither Sedley LJ nor Simon Brown LJ thought it logical to impose liability for misfeasance in office where the released prisoner only presented a risk to his wife but not when the released prisoner was a terrorist or a serial killer who presented a risk to the every member of the public. Akenzua was a case founded on an allegation of misfeasance in public office but to To make such a distinction where the action was founded on negligence was, Mr Di Rollo argued, not only equally illogical but also paradoxical in that the greater (in the sense of the more indiscriminate and therefore involving a greater number of people) the risk posed by the prisoner the less likely it is that the court will find the necessary nexus or degree of proximity. Put short, it appeared to be a case of the greater the risk the less the duty; : hence the Hannibal Lecter paradox.

[25] Counsel Recognising the law to be that foreseeability of risk to the public as a whole was generally not enough, Mr Di Rollfor the pursuer io invited me to treat this an exceptional case, equivalent to Attorney General of the British Virgin Islands v Hartwell and O'Dwyer v Chief Constable of the Royal Ulster Constabulary and to find that the immediacy and severity of the risk, the fact that the risk was known to the public authority the fact that the authority had a specific responsibility for the protection of the public and yet in the face of the risk the public authority created the relevant hazard by releasing Campbell (a positive act not an omission), and the fact that the authority had a specific responsibility for the protection of the public, either singly or together were sufficient to establish such proximity as was necessary.

[26] The requirement for proximity is one mechanism (there are others) by which the law of negligence is kept "within the bounds of common sense and practicality" to use the words of Lord Oliver in Caparo supra at 633. However, as Lord Bridge recognised in the same case (at 618) the concept is not susceptible to such precise definition as to make it useful as a practical test as to whether a duty of care should be recognised as having been owed to an injured party in a particular case. I would see Lord Mance as making the same point in Customs and Excise Commissioners v Barclays Bank plc supra at para 93 when talking about proximity as part of a framework which "operates at a high level of abstraction". What the court does, therefore, in the absence of any bright-line test is to look at the circumstances of the particular case with a view to determining pragmatically whether a duty of care exists: Caparo supra Lord Bridge at 618, Lord Oliver at 633. Because judicial decision-making should, as far as possible, be consistent and predictable, the court will, on a case by case basis, seek to treat similar situations similarly. This is the process which Lord Bridge described and commended in the passage in his speech in Caparo which follows soon after his statement of the tripartite test: The authorities warn against reliance on statements of principle alone in resolving the difficulties arising in a particular case where it is claimed that injury has been caused by negligence. As Lord Mance put it in Customs and Excise Commissioners v Barclays Bank plc supra at para 93:

"In my view the threefold test of foreseeability, proximity and fairness, justice and reasonableness provides a convenient general framework although it operates at a high level of abstraction... Incrementalism operates as an important cross-check..."

And in Caparo itself, Lord Bridge, having formulated the tripartite test, immediately added the qualification (supra at 618):

"But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. "Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v.v Heyman (1985) 60 A.L.R. 1 , 43-44, where he said:

'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.'"

[27] In the present case the statement of principle that foreseeability of harm to the public at large is not sufficient for the imposition of a duty of care marks the point of departure as between the respective approaches of the parties. Both parties (the pursuer reluctantly and pointing to the Hannibal Lecter paradox) would accept it as soundly based on authority which includes Dorset Yacht, Hill and Mitchell and as applicable to the sub-category of cases identified by the defenders as including the present: where liability is sought to be established for the deliberate wrongdoing of an independent third party as against a public authority having some degree of control over the offending third party. From that point the direction taken by the defenders was to accept that a duty of care might be held to be owed by the public authority to an individual member of the public within this sub-category but only where the particular circumstances exposed the individual to special risk of harm. On the defenders' analysis of the case-law no such circumstances existed in the present case. The direction taken by the pursuer, on the other hand, was not so much as to bring the case within an existing category or sub-category or even to develop a new category, as to plead for an exception to the rule that required special risk before there could be a duty of care founding on the factors specified by Mr Di Rollo and pointing to decided cases where a duty had been recognised as being owed to a very wide class of potential victims. In taking their different directions and for the different respective purposes both parties relied on a number of cases, which have been decided in a variety of jurisdictions. I propose to look at these cases before going further. The first two were particularly relied on by Mr Di Rollo as demonstrating that foreseeability of risk of harm to the general public may be enough to found a duty of care to an individual. The others including Couch on which Mr Di Rollo also relies) are examples of cases falling within what the defenders say is the relevant sub-category.

What I take from that is if the law of negligence is to be kept "within the bounds of common sense and practicality", to use Lord Oliver's expression in Caparo supra at 633, logical symmetry may not always be possible. "'Proximity'", as Lord Oliver went on to explain, "is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists." The safest way forward, at least for a judge sitting at first instance, is to examine previous decisions and to compare the circumstances of the case before him with those that have gone before with a view to determining where his case fits within the spectrum of authorities. Encouraging me to avoid the Hannibal Lecter paradox and relying particularly on Hartwell, O'Dwyer and Couch, that is what I understood Mr Di Rollo invited me to do.

Having followed Mr Di Rollo's invitation, it appears to me that when the cases which have similar features to the present are examined they do not support the view that the circumstances here provide sufficient proximity as to establish a duty of care owed by those for whom the defenders have accepted responsibility and the deceased. In my opinion the pursuer's case is irrelevant because she is unable to bring the deceased and those for whom the defenders are responsible into the relationship of proximity necessary for there to be a duty of care and that is clear on the authorities.

[28] The facts in Hartwell were that a police officer employed by the Royal Virgin Islands Police Force, having abandoned his post, entered a crowded bar where his partner worked as a waitress and, in a fit of jealous rage at finding her there with another man, fired four shots at her with a police service revolver which he had taken from the police station's station's strongbox, to which he had access in the course of his duties. The claimant, a tourist who was in the bar at the time, was seriously injured. He claimed damages for negligence against the Attorney General, representing the Government of the British Virgin Islands, relying on evidence of two earlier incidents as demonstrating that the officer, who was still at the probationary stage of his career, was not a fit and proper person to be given access to firearms. Upholding the judgment of the Eastern Caribbean Court of Appeal, the Privy Council held that a duty of care was owed to the claimant; and that, in view of the relaxed and surprisingly casual response of senior officers to the two earlier incidents involving the officer, there had been a sufficient breach of that duty to found liability in negligence. The critical factor in finding there to have been a duty was the long recognition by the law of the special dangers associated with articles such as loaded firearms, explosives and poisons. This was stressed by Lord Nicholls in giving judgment supra at paras 36 and 39):

"36 Thus, where an article as dangerous as a loaded gun is handed over the class of persons to whom the duty of care is owed is wide and the standard of care required is high...

39 ...If this duty seems far-reaching in its scope it must be remembered that guns are dangerous weapons. The wide reach of the duty is proportionate to the gravity of the risks."

[29] O'Dwyer was also a policeman with a firearm case, albeit that the firearm was a privately held shotgun. The policeman in question, a constable in the RUC by name of Moore, discharged the shotgun in the Sinn Fein Centre on the Falls Road, Belfast, fatally injuring two people there. He later killed himself with a shot from the same shotgun. He had been detained by the police earlier in the day, intoxicated and in a deranged state of mind. He had spoken about shooting people and in particular Republican suspects. The police were aware that he had access to a shotgun. Despite this he was released from police detention. A strong Court of Appeal for Northern Ireland declined to strike out the pleadings on the basis that it was arguable that a duty of care existed. Noting (supra at 412) that it had been argued that it was necessary that the plaintiffs should establish the existence of the type of special relationship between the police and the victims which was discussed in Hill v Chief Constable of West Yorkshire, the Court said it was not convinced that such a limitation should be imposed in the particular case. It went on:

"It is possible to see the necessity for it in a case of failure to exercise reasonable care in carrying out a duty where such failure could affect a very wide class of people. There must necessarily be some limit on the ambit of potential liability, and it has been created by prescribing the existence of a special relationship. It seems to us that it may not be required in the present case. Once it is established that the circumstances gave rise to a duty on the part of the police to take some steps to prevent Moore from endangering other people, the class of people at risk consisted of those whom he might meet or seek out in the course of a relatively limited period. We are not satisfied that it is necessary to limit it any further."

O'Dwyer has not been widely cited, so Mr Moynihan informed me. He did not, however, suggest that it had been wrongly decided. That Moore was described as being in a deranged state of mind might have taken the case out of the category of cases where the injury is caused by the act of an independent third party exercising free will. That is not the ratio of the case. Rather, the Court, with what can be taken to be a very full understanding of the narrow temporal, spatial, social and political parameters within which Moore was operating, took the view that the class of people at risk and the time over which they were at risk was were sufficiently limited to make it arguable that a relationship of proximity existed. If I am wrong about that then O'Dwyer probably simply has to be explained in terms of its very particular circumstances and the procedural stage at which it was at, where the test was the relatively modest one of arguability. At all events it does not support the proposition that risk to the general public, even grave risk, is enough to satisfy the requirement of proximity.

[30] Couch is a decision of the Supreme Court of New Zealand and, as such, commands the highest respect. . I question how helpful the majority opinion is to the pursuer's position here. Again the question of sufficiency of proximity was raised on a motion to strike out. Pleadings had not been finalised. The action was based on failures on the part of the Probation Service in its placement and supervision of a parolee named Bell, at the instance of an employee at a place where Bell had been allowed to work, who was injured during a robbery committed by the parolee and accomplices during which three other members of staff were murdered. The Supreme Court was unanimous in holding that the claim should not be struck out as disclosing no duty of care but it split on how proximity would have to be established at the subsequent trial. For the minority, consisting of Elias CJ and Anderson J, whether there was sufficient proximity turned on a broad inquiry into the facts. It was important that the Probation Service was discharging statutory obligations. Elias CJ said this, at para 64 et seq

"[64]... For ourselves, we would be prepared to allow that proximity sufficient to give rise to a duty of care can arise by reason of statutory obligations and powers, particularly in the circumstances identified by Mason J [in Sutherland Shire Council v.v Heyman supra] where individuals cannot take steps for their own protection or where social conditions have led individuals to rely on fulfilment of statutory responsibilities. That is consistent with the New Zealand authorities.

[65]... We accept that proximity between a statutory body and a plaintiff who has suffered harm is not readily to be assumed whenever statutory duties and powers could reasonably have been used to avoid foreseeable loss. But the statutory obligation is we think highly relevant to the judgment of sufficient proximity between plaintiff and statutory authority to give rise to an actionable duty of care. And in some cases, particularly those where individuals cannot reasonably protect themselves from risk which a statutory body has a duty to abate or manage, we consider that sufficient proximity may well follow from the statutory obligations...

[67] The scope of those to whom the Probation Service might ultimately be liable will be relevant in any final determination of whether there is a duty of care. As indicated, we do not think that the authorities compel the view that duties of care can be owed only to those who are members of a limited class. It is in the nature of public functions that those foreseeably at risk if statutory responsibilities are discharged negligently will be a wide class, perhaps as wide as the general public if the responsibilities are imposed for public protection (as the duties imposed by the Criminal Justice Act upon the Probation Service explicitly are) and if the risk warrants it. ... Although duties of care may be expressed as being owed by manufacturers to consumers for defective products, by public authorities to road users for highway hazards, by local councils to owners and occupiers of houses for building defects, by the police to 'young people' at risk from a paedophile, these 'categories' effectively amount to recognition of duties to the whole world. But, at least in the case of physical harm, it is only those who come within the vicinity of the hazard who will be harmed and who may have a claim. In principle, therefore, we do not see a decisive impediment to proximity in the breadth of the class to whom the Probation Service might owe a duty of care in the supervision of a parolee. If the Probation Service is shown to have acted below the standard reasonably to be expected and that want of care is causative of loss, it is not immediately clear that the plaintiff should not be able to claim as a member of the public if she suffers harm, if the public generally is foreseeably at risk and the harm not too remote. Much will depend on the nature of the risk and whether it is significant enough to import the necessary relation."

What Elias CJ said about the significance of an authority having a statutory obligation to protect the public and gravity of the risk found an echo in Mr Di Rollo's submissions on behalf of the pursuer. On the significance of such a statutory obligation I have not discerned a similar echo in the United Kingdom authorities and, as I shall mention, I would see the argument that proximity can be supplied simply by the gravity of the risk to have been rejected in K v Secretary of State for the Home Department supra. Moreover, the majority in Couch was only prepared to find the existence of a duty of care owed by the Probation Service to be arguable on the basis that the plaintiff was subject of a distinct and special risk of suffering the kind of harm that she sustained at the hands of Bell. As Tipping J put it on behalf of the majority at paras 112 and 113:

"[112][Counsel for the plaintiff] accepted the general tenor of the 'special risk' approach. Indeed he invoked it in support of his argument for a duty of care. The general principle deriving from the cases is a sound and well established one for determining proximity in cases where the harm suffered by the plaintiff is immediately caused neither by the defendant nor by a person for whom the defendant has vicarious liability. The probation officer and the Department did not owe Ms Couch any duty of care simply because she was a member of the public. To establish a duty of care Ms Couch must demonstrate that, either as an individual or as a member of an identifiable and sufficiently delineated class, she was or should have been known by the defendants to be the subject of a distinct and special risk of suffering harm of the kind she sustained at the hands of Bell. The necessary risk must be distinct in the sense of being clearly apparent, and special in the sense that the plaintiff's individual circumstances, or her membership of the necessary class rendered her particularly vulnerable to suffering harm of the relevant kind from Bell. [113]If the necessary special and distinct risk can be established the plaintiff will thereby have demonstrated the proximity criterion for the imposition of a duty of care. It then becomes necessary to examine policy issues to determine whether they militate against the imposition of a duty, despite proximity having been established. If the necessary special and distinct risk cannot be established there will be no proximity and therefore no need to examine policy issues, because without proximity there can be no duty of care."

Although pleadings had not been finalised the majority was of the opinion that an arguable case could be pleaded that Ms Couch was the subject of the necessary distinct and special risk of being physically harmed by Bell. The relevant facts were outlined at para 124:

"The defendants knew that Bell was classified as posing a high risk of reoffending. [The offence for which he had originally been convicted] was arguably marked by a particularly dangerous and unusual feature in the form of what appears to have been an attempt by Bell to inflict gratuitous and random violence on a person present at the robbery scene. Bell was known to be in constant need of money to feed his alcohol addiction. He was allowed to work at premises in which significant amounts of cash in the form of bar takings were likely to be present. He was able, while engaged on the premises, to find out about the security systems and arrangements which were in force. His ability to do this made [these] premises a predictable target for any further robbery he might be minded to commit. Hence anyone who might be present in the premises at the time of such robbery was at greater risk than members of the public generally and those present were particularly vulnerable because Bell had exhibited a tendency to commit random violence during a robbery."

[31] Thus, although Mr Di Rollo drew attention to Couch as the onlya case which he took to be analogous where inquiry had been allowed on the basis of an allegation of a duty of care having been owed by a custodial authority to someone who was simply a member of the public and who had been injured by a prisoner granted conditional release, the judgment of the majority of the Court does not really bear that construction. The majority was careful to emphasise the need to demonstrate the need for a special risk to a member of a sufficiently delineated class for a duty of care to be owed to that person, this in the a context where the facts pointed to a quite specific link, known to the custodial authority, as between the victim and the released prisoner.

[32] The other antipodean case which I was asked to look at was New South Wales v Godfrey supra, an action at the instance of a first plaintiff who had been the victim of an armed robbery committed by a prisoner who had escaped from a state-run gaol some ten weeks previously. She suffered nervous shock and gave birth prematurely to the second plaintiff who suffered certain disabilities consequent on his premature birth. The leading judgment of the New South Wales Court of Appeal was given by Spigelman CJ. That judgment, with which the other members of the Court concurred, includes extensive citation of both Australian and English authority. Applying Dorset Yacht, it concluded that there was no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol. On consideration of a variety of factors it further concluded that no duty should be recognised.

[33] I was also referred to Palmer v Tees Health Authority supra and K v Secretary of State for the Home Department supra.

[34] Palmer was an action at the instance of a mother whose young child had been killed by a man, Armstrong, who had, some months previously, been in receipt of psychiatric care from the defendant health authority. She sued on her own behalf in respect of nervous shock and as executrix of her dead child. She alleged that the defendant had failed to diagnose that there was a real, substantial and foreseeable risk of Armstrong committing serious sexual offences against children and of causing serious bodily injury to any child victims. As a consequence, it had failed to provide any adequate treatment for Armstrong to reduce the risk of him committing such offences, and/or to prevent him from being released from hospital or some other appropriate institution whilst he was at risk of committing such offences. As with the present case, the murder victim had no closer connection with the murderer than any other member of the public. Counsel for the plaintiff had argued that proximity was satisfied if there was reasonable foreseeability. It was not necessary to have an identified or identifiable victim. It was sufficient if injury of the type sustained was reasonably foreseeable. The Court of Appeal upheld the decision to strike out the claims. Pill LJ recognised that the requirement to have an identifiable victim before there could be a duty of care was not entirely satisfactory. He observed, supra at 108D et seq:

"I see force in the submission that the question whether the identity of a victim is known ought not to determine whether the proximity test is passed. It is forcefully argued that the difference between the threat 'I will kill X' and the threat 'I will kill the first bald-headed man I meet' ought not to determine whether a duty is placed upon a defendant, though it would obviously go to the extent of the duty and the measures necessary to discharge it. ...[However] Dorset Yacht and Hill are in my judgment binding authority for the proposition that, in circumstances such as the present, the identity of the victim is an important factor in deciding whether the foreseeability test is passed. That being so, I agree with Stuart-Smith L.J. that, upon the facts of this case, [the murder victim] does not pass the threshold requirement of the proximity test necessary to establish a duty of care and that the decision to strike out on that ground was correct."

[35] In K the plaintiff had been raped by an illegal immigrant, Rashid Musa, who had been detained but then released by the Home Secretary. Her case in broad terms was that the Secretary of State released Musa into the community when he knew or should have known that he was a very dangerous individual, liable to commit crimes of sexual violence; he ought to have kept him in detention until he could be deported. She argued that where to the knowledge of the defendant the risk posed is especially grave, that circumstance can of itself supply a nexus between claimant and defendant sufficient to create a duty of care. Law LJ (at para 29) rejected that proposition as contrary to principle:

"A defendant does not become the world's insurer against the grave danger (where the danger is general) posed by a third agency, which he might control but does not, by virtue only of the fact that he appreciates that the danger exists."

Arden LJ agreed (as did Simon Brown LJ (as he then was)). At para 35 she said:

" ... The need to show proximity (meaning closeness of a relevant kind between the appellant and the respondent) is a separate requirement of the duty of care, which cannot be established simply by showing the knowledge on the part of the respondent of a glaring danger to the public as a result of Mr Musa's release. Accordingly, this case cannot in my judgment be distinguished from the decision of this Court in Palmer v Tees Health Authority."

[36] Strictly speaking, none of these decisions is binding on me. They nevertheless provide valuable guidance. They apply and reaffirm, at an appellate level and in cases similar to the present, principles derived from cases that are binding on me. They also illustrate the familiar technique of categorising cases and making incremental advances by analogy to what has been previously decided referred to by Brennan J in Sutherland Shire Council supra.

[37] Mr Di Rollo's plea that I treat the present case as exceptional presupposes that it presents exceptional features. For all Mr Di Rollo emphasis on the severity of the risk posed by Campbell I am not persuaded that that is so. Agreeing with counsel for the defenders I would see the present case as coming within the same category or sub-category as Dorset Yacht, Palmer, K, Godfrey and Couch and as having no features which are not found in these cases. Each of them affirm the need for proximity in addition to foreseeability and the consequent requirement that for there to be a duty of care there must be special risk, by which is meant that is in some way particular to the person injured as opposed to especially serious risk to the world in general. I would see Hartwell as belonging to a significantly different category, it being about liability arising from putting into circulation a highly dangerous article. That is the context for Lord Nicholls's observation about the width of the duty being proportionate to the gravity of the risk. Palmer and K demonstrate that the effect of Dorset Yacht and Hill is that putting a dangerous person into circulation (the complaint here) is not the same thing as putting a dangerous article into circulation or at least that the two things are not treated in the law of negligence as being equivalent.

[38] It may be that O'Dwyer has to be regarded as exceptional in that the Court recognised that for there to be liability for the wrongful acts of an independent third party there had to be a special relationship between the injured party and the party said to be responsible and yet "it may not be required in the present case". If that is so that only takes the pursuer the distance of illustrating that there are such things as exceptional cases. I do not consider that it takes her further. The facts in O'Dwyer were rather different from the facts here but, more importantly in my opinion, the social and political context was very different from that of the present case.

[39] Couch was the only decision referred to by Mr Di Rollo which was said to be analogous with the present and where the possibility of the existence of a duty of care had been accepted. It is true that all members of the Court were in favour of allowing the claim for damages against the relevant public authority at the instance of a member of the public who had been injured by a prisoner on parole to go on to trial. However, it is important to note that there was split in the Court as to the basis upon which this was allowed. For the majority the case (which was quite strong on the facts) was no more than application of the principle derived from Dorset Yacht: proximity was required and for that the plaintiff had to demonstrate that, either as an individual or as a member of an identifiable and sufficiently delineated class, she was or should have been known by the defendants to be the subject of a distinct and special risk of suffering harm of the kind she sustained at the hands of the paroled prisoner. It is the judgment of the minority, delivered by the Chief Justice, which contemplates it as being sufficient for a member of the public to make a claim that the public generally was foreseeably at risk. Interesting as the Chief Justice's judgment undoubtedly is, given the judgment of the majority of the Supreme Court, I take it that there is a question as to whether what she says represents the law of New Zealand. I do not see it as being the law of Scotland and I did not understand counsel for the pursuer to suggest otherwise.

[40] In the present case it is accepted on both sides that general principle requires something more than foreseeability of harm for there to be a duty of care owed and unless a duty of care is owed and breached there is no negligence and therefore no basis for a claim for damages. The "something more" includes a sufficient relationship as between the injured party and the party sought to be made liable as to merit the description of proximity or nexus. The concept is not precise and its presence or absence is most readily determined by examination of the specific factual situations or categories described in the case-law where, for what are essentially pragmatic reasons, a sufficient relationship has been found to exist. There must however be something special to the injured party that he or she does not share with other members of the public. Illogical as it has sometimes been seen to be, at least in the category of cases to which my attention has been drawn, the something special is special risk of harm. Here the defenders say that the prison authorities owed no duty of care to the deceased and therefore the pursuer's case is irrelevant. Testing that proposition at the level of general principle I would regard it to be sound in that the pursuer cannot and does not say that the deceased was at special risk of harm from Campbell. I see that conclusion as confirmed on looking at the decisions cited as being analogous to the pursuer's case. Only the minority position in the New Zealand case of Couch provides any support for an alternative method of finding proximity than what in the same case was referred to as the special risk approach. As I understood senior counsel for the pursuer to accept, this threw him back on his plea to have this case treated as an exception to the general principle, despite that principle having been reiterated in the House of Lords and, O'Dwyer aside, consistently applied by appellate courts in all the jurisdictions mentioned in the debate before me. As Mitchell affirms the law of negligence can be taken to be the same in Scotland as in England. While that cannot necessarily be said of the law of New South Wales or New Zealand, I see in Godfrey and Couch support for the general principle and no basis for recognising the facts in the present case as warranting exceptional treatment. In my opinion the pursuer's case, insofar as based on negligence, is irrelevant and must be dismissed.

Negligence: exercise of discretionary power: specification of breach of duty

[41] The series of decisions under attack were made in terms of discretion conferred by the Rules. I did not understand to be controversial that the The applicable law was is that set out by Lord Browne-Wilkinson in X v Bedfordshire County Council at 736:

"Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.

That this is the law is established by the decision in the Dorset Yacht case
[1970] AC 1004 and by that part of the decision in Anns v.v Merton London Borough Council [1978] AC 728 which, so far as I am aware, has largely escaped criticism in later decisions. In the Dorset Yacht case Lord Reid said
[1970] AC 1004 , 1031:

'Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.'"

[42] Thus, in order to succeed the pursuer must establish that the decisions she criticises fall outside the limits of a reasonable exercise of discretion. The defenders' argument came to be one which founded on absence of specification as to why it was said that this was so. Mr Di Rollo for the pursuer submitted that the pursuer's averments were tolerably clear. I would agree. It appears to me that the critical averment is that, contrary to the mandatory - requirement of Direction 3 (1) (e) issued by the Scottish Ministers on 11 February 2005, the Governor of HMP Castle Huntly approved Campbell's application for short term leave without any risk assessment whatsoever. That of itself, if proved, would seem to have the result that the decision to allow Campbell leave was unlawful. Accordingly I would not have refused the pursuer's averments probation had I taken a different view on the existence of a duty of care.

Article 2 of the European Convention of Human Rights

[43] Again, parties were agreed as to the law applicable to this branch of the case. Osman v United Kingdom remained as a principal authority from the European Court of Human Rights but its scope had been extended by the Court's decisions in Mastromatteo v Italy supra and Maiorano v Italy supra. Lord Bingham explained the effect of the Osman ruling as follows in Van Colle v Chief Constable of the Hertfordshire Police supra at 255H to 256D as follows:

"28 Article 2 of the European Convention provides, in paragraph (1): '"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally ..." ...' According to what has become a conventional analysis, this provision enjoins each member state not only to refrain from the intentional and unlawful taking of life ("('Thou shalt not kill") ') but also to take appropriate steps to safeguard the lives of those within its jurisdiction: Osman v United Kingdom (1998) 29 EHRR 245 , para 115. The state's duty in this respect (as this para of the judgment of the Strasbourg court in Osman makes clear) includes but extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 may also, '"in certain well-defined circumstances'ces", iimply a positive obligation on national authorities to take preventative measures to protect an individual whose life is at risk from the criminal acts of another. ...

29 In Osman , para 116, the court defined the circumstances in which the obligation arises:

'it must be established to [the court's] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Every ingredient of this carefully drafted ruling is, I think, of importance."

[44] Thus, on the authority of Osman for the state's operational responsibility to be engaged, the risk must be to life, it must be in respect of an identified individual or individuals and it must be real and immediate.

[45] In Mastromatteo v Italy, what was in issue was "the obligation to afford general protection to society against the potential acts of one or of several persons serving a prison sentence for a violent crime and the scope of that protection": supra at para 69. The applicant's son, A Mastromatteo, had been shot dead by MR who had just robbed a bank with two accomplices, GM and GB, and was being pursued by the police. Mr Mastromatteo had been driving a car which had crossed the robbers' path. The robbers had attempted to take control of the car. When Mr Mastromatteo tried to accelerate away, he had been shot at point-blank range. At the time of the robbery GM was serving a prison sentence of 15 years and 7 months for attempted murder, armed robbery and other offences but had been allowed leave from prison and then failed to return on the due date. GM had been convicted of aiding and abetting armed robbery and other offences. At the time of the shooting of Mr Mastromatteo he was serving his sentence in a semi-custodial regime under which he worked outside prison during the day and returned to prison in the evening, as an alternative to imprisonment. As the Court recognised, following Osman:

"67. ...Article 2 may ...imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual.

68. That does not mean, however, that a positive obligation to prevent every possibility of violence can be derived from this provision.

...not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. A positive obligation will arise ...where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to ...life..."

Until the decision in Mastromatteo, the Court had gone no further than finding there to be such an obligation where there was a risk to the life of an identified individual or individuals. However, in Mastromatteo albeit without finding it necessary to engage in much by way of discussion, the Court was prepared to take a further step. Thus, at para 74:

"It remains to be seen whether the adoption and implementation of the decisions to MR prison leave and GM semi-custodial treatment disclose a breach of the duty of care required in this area by Article 2 of the Convention.

In that regard it is clear that if MR and GM had been in prison on 8 November 1989, A Mastromatteo would not have been murdered by them. However, a mere condition sine qua non does not suffice to engage the responsibility of the State under the Convention; it must be shown that the death ... resulted from a failure on the part of the national authorities to 'do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge' (Osman, ... para 116), the relevant risk in the present case being a risk to the life for members of the public at large rather than for one or more identified individuals."

On the facts, the Court in Mastromatteo found there to have been no breach of Article 2 as "there was nothing in the material before the national authorities to alert them to the fact that the release of MR or GM would pose a real and immediate risk to life" (supra at para 76). In Maiorano the Court did find the state to have been in breach of Article 2 where a prisoner on day release had murdered two female relatives of a criminal associate "for the simple pleasure of killing" (Maiorano supra at para 54)

on the basis that, distinguishing Osman and following Mastormatteo the case was "to do with the obligation to insure a general protection of society against the possible actions of a person condemned to be imprisoned for violent crimes." However, the finding proceeded on "a certain and immediate threat to life of which [the national authorities] were or should have been aware" (Maiorano supra at para 109). There was no suggestion in the argument before me that the expression "certain and immediate threat to life" (in the French text "risque certain et immédiat pour la vie") has a different meaning than "real and immediate risk to life". However precisely it is formulated, the risk is very high and it is a risk to life.

[46] The killer in Maiorano had originally been sentenced to life without parole for crimes described of being of exceptional cruelty. Thereafter his conduct was, as the Court observed, "far from irreproachable" (supra at para 117): in 1977 he attempted to escape from prison by taking a prison guard hostage, in 1978 he committed crimes concerned with drugs, in 1983 he was found in possession of a knife, in 1993 he escaped and obtained false identity papers, a gun, ammunition and cash, in 1996 he declared to a prison guard that if he came in contact with a fellow prisoner he could not be responsible for his actions, and in 2003 he broke the terms of a temporary release. In 2004, following a grantafter the killer had been granted of partial release, an informer disclosed to the public prosecutor that the killer was preparing to commit a murder and other serious crimes and to set up a drugs operation.

[47] In the present case it is averred, at page 20 of the Record, that Campbell was violent and dangerous. There is reference to the history and pattern of his offending prior to conviction and to the risk factors which are set out at page 14 of the Record. It is averred that on that basis that the Scottish Prison Service knew that "he posed a real and immediate risk of danger to the public." What is not averred is a real and immediate risk of the death of a member of the public, and having regard to what else appears in the pleadings (which may be taken to be informed by the findings of the Fatal Accident Inquiry into the death of the deceased) it is difficult to see how that might responsibly be averred. In my opinion the case insofar as based on breach of Article 2 of the European Convention on Human Rights is accordingly irrelevant.

Conclusion

[48] The action falls to be dismissed. I shall reserve all questions of expenses.