Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Menzies Lady Dorrian	[2013] CSIH 63 A1030/08 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the reclaiming motion ANN THOMSON (AP) Pursuer and Reclaimer; against THE SCOTTISH MINISTERS Defenders and Respondents: _______

Act: Di Rollo QC, Divers; Drummond Miller LLP (for Ross Harper, Glasgow)

Alt: Moynihan QC, McBrearty; Anderson Strathern LLP

28 June 2013

The pleadings

[1] The pursuer is the mother of the late Catherine Thomson, who was murdered by John Campbell on 22 August 2005 at her mother's address in Fernleigh Place, Moodiesburn. At the time of the murder Mr Campbell was serving a sentence of imprisonment, but had been permitted a "short leave". This was a temporary release from prison to enable Mr Campbell to visit his own home, which was stipulated as being that of his mother, in Deepdene Road, Moodiesburn. Following upon his arrest on 26 August 2005, Mr Campbell committed suicide.

[2] Mr Campbell was a person with a significant criminal record. It is averred that over the period from 1987 to 2001 he had accumulated some 36 convictions. On 20 January 1998, he had graduated to the High Court in Glasgow, where he was sentenced to four and three years imprisonment respectively for offences of assault and robbery and a contravention of the Firearms Act 1968. He was released from that sentence on 8 March 2001, but his licence was revoked two months later following his arrest on charges of breach of the peace and possession of a knife. He was released on licence again on 1 May 2002 and, a few days later, assaulted his estranged wife and her female friend at his wife's home. He was convicted of that offence on 27 August 2002, when he was sentenced to eight years and six months imprisonment for assault to severe injury and permanent disfigurement by use of a knife.

[3] The temporary release of prisoners is governed by the Prisons and Young Offenders Institutions (Scotland) Rules 1994. Rule 14A divides the supervision levels of prisoners into high, medium and low. The appropriate level is assigned having regard to a variety of different criteria, including the seriousness of the offence of which the prisoner has been convicted, his criminal record, conduct in custody and other related matters. The governor is required to review the level at least every twelve months after the expiry of an initial period of assessment.

[4] Rule 120(2) provides that the governor of a prison may grant an "eligible" prisoner short leave if he is of the opinion that it is appropriate to do so, having regard to certain criteria. A prisoner is only "eligible" if he has been assigned a low supervision level. Rule 126 permits the Scottish Ministers to give directions on, amongst other things, the manner in which a governor will consider an application for short leave and the relevant criteria which have to be satisfied before granting release. In terms of a direction dated 11 February 2005, one matter which a governor is required to carry out is an assessment of the risk that the prisoner may abscond and/or present a danger to the public. A governor requires to record his/her decision and the reasons for it in writing.

[5] After a short period in HM Prison Barlinnie, Mr Campbell was transferred to HM Prison Kilmarnock, where he was assessed as requiring high supervision. This level took into account his regular abuse of drugs, attempts at suicide and need for anger management. In May 2003 his supervision level was reduced to medium. In December 2004 it was reduced to low, thus allowing him to become eligible for short leave. It is the pursuer's contention that at no point should Mr Campbell's level of supervision have been reduced below medium.

[6] In May 2005, Mr Campbell was transferred to HM Prison Friarton and, in July, to the open prison at Castle Huntly. In early course he applied for short leave. His application was granted on 8 August 2005, although it is averred that no assessment was carried out by the governor in relation to the risk which he posed to the public. It is also averred that no reasons for the grant of leave were recorded in writing. It is said that a proper assessment of the risk posed by Mr Campbell, which would have taken into account his history of significant violence, substance abuse, lack of co-operation with authority and related matters, would have concluded that there was an "unacceptable" risk that he would behave violently in the event of release.

[7] On 18 August 2005, the deputy governor of the prison met with Mr Campbell to review the grant of leave. By that time Mr Campbell had tested positive for illegal drugs. As a result of that, a penalty of loss of home leave was imposed, but this was suspended for a period of two months. Mr Campbell was released on 19 August and transported to Buchanan Street Bus Station, Glasgow, in accordance with normal arrangements.

[8] The pursuer avers that, after his arrival at Buchanan Street, Mr Campbell made his way to his mother's house in Deepdene Road. It was after that that he came into contact with the deceased. The deceased was known to Mr Campbell. She had been a friend of his since childhood. She had grown up with him in Moodiesburn and had been the girlfriend of his brother for some five years. She had regularly socialised with Mr Campbell. Mr Campbell and the deceased consumed a variety of Class A drugs over 20 and 21 August. It is said that at some point during this period he made threats to kill the deceased as she had not returned certain money of his. He stabbed her to death on 22 August.

[9] On the basis of these factual averments, the pursuer seeks reparation from the defenders, by reason of the fault and negligence of the Scottish Prison Service ("SPS") and their staff, for whose acts and omissions, in the course of their employment, the defenders are said to be responsible. In particular it is averred that:

"The Scottish Prison Service owed a duty of care to the deceased and other members of the public not to release violent and dangerous prisoners such as Campbell on short term leave if such prisoners presented a real and immediate risk of danger. Campbell presented a real and immediate risk of danger to the public. That he did so was known or ought to have been known to the defenders".

[10] It is contended that the SPS knew or ought to have known that, when released on leave, Mr Campbell would abuse alcohol and drugs and that he would come into contact with family members and their associates. The SPS knew that he had unresolved anger management difficulties and that his propensity to abuse illegal drugs rendered him liable to be violent and dangerous "to those with whom he would be expected to have dealings during the weekend release". The SPS were aware of the various risk factors. On that basis it is averred that:

"They knew that these factors were such that he posed a real and immediate risk of danger to those persons with whom he would be expected to have dealings during his weekend release".

[11] In short, the pursuer maintains that Mr Campbell should not have been characterised as suitable for low level supervision and that, in any event, his circumstances were such that he should not have been considered for short leave. As a separate ground of claim it is maintained that the SPS did not protect the life of the deceased, as they were required to do, in terms of Article 2 of the European Convention on Human Rights. They were thus acting unlawfully in terms of section 6(1) of the Human Rights Act 1998.

The Lord Ordinary's decision
[12] The Lord Ordinary dismissed the action as irrelevant. He did so having heard extensive submissions on the extent of the duty of care owed by prison and other public authorities to those outside the prison walls, in the event of either an escape or a negligent release on parole. The Lord Ordinary focused his analysis on the need for "proximity" in defining the extent of the duty of care owed to a person's "neighbour" in terms of Lord Atkin's classic dictum in Donoghue v Stevenson 1932 SC (HL) 31 (at 44-45). He looked carefully at the speech of Lord Diplock in Dorset Yacht Co v Home Office [1970] AC 1004 (at 1070), where it was emphasised that, for a duty of care on the part of a custodian of a prisoner to exist, there had to be some relationship between the custodian and the injured party which exposed that party to "a particular risk of damage ... which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public". The Lord Ordinary noted that this approach had been adopted by Lord Keith in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (at 62). The need for proximity as a component had been affirmed by the tripartite test, which appeared in Caparo Industries v Dickman [1990] 2 AC 605 (Lord Bridge at 617-618) and which was in turn said to be part of the law of Scotland in Mitchell v Glasgow City Council 2009 SC (HL) 21 (Lord Hope at para [25]).

[13] The Lord Ordinary specifically noted the statement of principle that foreseeability of harm to the public at large was not sufficient for the imposition of a duty of care. It was that statement which he regarded as "the point of departure" between the respective approaches of the parties. He considered that the pursuer's case came within the category or sub-category of incidents analysed in Dorset Yacht Co (supra), Palmer v Tees Health Authority [2000] PNLR 87, K v Secretary of State for the Home Department [2002] EWCA Civ 775, State of New South Wales v Godfrey [2004] NSWCA 113 and Couch v Attorney General [2008] 3 NZLR 725. In that regard there was a need to establish proximity in addition to foreseeability. For there to be a duty of care, there had to be a "special risk", by which was meant that, in some way particular to the injured party, there was a serious risk beyond that engaged by the world in general. Put another way, there had to be something "special to the injured party that he or she does not share with other members of the public" (Opinion, para [40]). Although he recognised the illogicality of the matter in certain circumstances, a particular or special risk of harm was required. Such a risk was not present in the case of the deceased.

[14] In relation to the human rights case, the Lord Ordinary analysed a number of authorities, notably Osman v United Kingdom (1998) 29 EHRR 245, Mastromatteo v Italy, 24 October 2002, European Court of Human Rights (no 9 37703/97), Maiorano v Italy, 15 December 2009, European Court of Human Rights (no 28634/06) and Van Colle v Chief Constable of Hertfordshire Police [2009] 1 AC 225. He held that, for there to be a valid claim, there required to be a risk to the life of an identified individual which was both real and immediate. That had not been averred and, accordingly, the claim based on the failure to protect the deceased's human rights was bound to fail.

Submissions

[15] Before turning to the submissions, the court requires to emphasise the need for parties to restrict the citation of authorities within reasonable bounds. The court stresses that its intention, in publishing the Practice Note No 3 of 2011 - Causes in the Inner House, was to increase the efficiency of the appellate Divisions with a view to improving the quality of justice offered in all appeals. The terms of the Practice Note were framed after much detailed deliberation and consultation. They provide (para 90) that, as a generality, the joint list of authorities should "not include more than 10" such authorities "unless the scale of the reclaiming motion... warrants more extensive citation". The court accepts that the issues in this case may have merited reference to more than 10 cases, although even this is doubtful given that most of the law is set out in a few relevant cases decided since 2000 which quote at length the significant dicta in the earlier precedents. On no view did the case merit the citation of the 40 or so authorities mentioned in the list lodged in advance (to which further cases were added during the hearing). If there is to be citation of in excess of 10 authorities or thereby, this must be brought to the attention of the procedural judge in advance of the hearing and prior to the lodging of the relative, electronic or hard, copies. If it is not, it is likely that the court will disallow the expenses of lodging any copies beyond the number stipulated in the Practice Note or authorised by the procedural judge. The Auditor of Court will be made aware of this view accordingly.

Pursuer and reclaimer

[16] The pursuer's claim arose from the release of Mr Campbell by the SPS in breach of the rules and directions applicable to the temporary release of prisoners. Mr Campbell was required to be confined to prison and could not lawfully be released other than in accordance with the provisions of the 1994 Rules (supra). He was not released on parole or licence and he did not escape from custody. In that sense, the present case differed from others which had been before the courts. There were no reported cases directly in point. The critical feature was that Mr Campbell was at all material times subject to the control of the SPS as custodian.

[17] Notwithstanding that it had been argued before the Lord Ordinary that a duty of care was owed by the SPS to members of the public at large, the pursuer's position before this court was that the deceased belonged to a group of people which, although difficult to define, was at a greater risk than members of the public in general. She was within that group of persons that Mr Campbell was likely to "have dealings" with during his weekend leave. She was a member of the Moodiesburn community into which Mr Campbell was released. She had a close connection with Mr Campbell's immediate family. She was the sort of person with whom he was likely to come into contact.

[18] There were three things wrong with the Lord Ordinary's approach. First, he had decided the case purely on the basis of proximity. He had erred in looking at proximity in isolation. In order to decide whether to impose a duty of care, the court had to have regard to the context of the situation and to fairness, justice and reasonableness (Stovin v Wise [1996] AC 923, Lord Nicholls (diss.) at 932, followed in Palmer v Tees Health Authority [2000] PNLR 87, Pill LJ at 106). The separate elements of the tripartite test were not to be compartmentalised. These elements shaded into one another and it was necessary to consider all of the elements together and their interrelationship in order to decide whether a duty of care should be imposed (Caparo Industries (supra), Lord Bridge at 617 - 618, Lord Oliver at 633; Custom & Excise Commissioners v Barclays Bank [2007] 1 AC 181, Lord Rodger at paras 51-53). Whilst foreseeability was conceded by the defenders for the purposes of the debate, the Lord Ordinary had failed to consider whether it was fair, just and reasonable to impose a duty. Although the test was not a single one, how each element of the tripartite construction was to be assessed was governed by what was regarded as fair, just and reasonable. The court would not impose a duty of care unless the first two elements were satisfied, but foreseeability and proximity contained, within themselves, the concepts of fairness, justice and reasonableness.

[19] Secondly, the Lord Ordinary had not taken into account the responsibility of the SPS as custodian of Mr Campbell and their creation of a danger by his release. The control by the SPS of Mr Campbell was significant and on that basis it may be appropriate to impose a duty of care (Maloco v Littlewoods Organisation 1987 SC (HL) 37, Lord Goff at 76-77, followed in Mitchell (supra) Lord Rodger at paras [56] and [57]). A weaker analogy could be drawn with the escape of a dangerous thing. The SPS, knowing the propensities of Mr Campbell, had created a danger by releasing him. Whilst the SPS were not in the position of insuring the public against all risks (Att-Gen of the British Virgin Islands v Hartwell [2004] WLR 1273, Lord Nicholls at para 33), they had to exercise a high degree of care in taking a decision about whether or not to release someone dangerous on short leave.

[20] The SPS had a duty to take reasonable care to see that prisoners remained in custody. It was part of their function to protect the public (Dorset Yacht Co (supra), Lord Reid at 1031). The sentencing of Mr Campbell contained an element of public protection. The duty owed by the SPS could be to the wider public; that is to say anybody within the immediate range of the harm that was likely to occur or against whom it was predictable, at the point of the breach, that the harm would be inflicted. Where there was a very high risk of harm, the class of persons to whom a duty was owed may be very large (Mitchell (supra), Lord Hope at paras 14 - 25). In the language of the neighbourhood principle (Donoghue v Stevenson (supra)), the SPS's "neighbour" was anybody with whom Mr Campbell may have been expected to "have dealings" upon release.

[21] A duty of care could be imposed notwithstanding that it was not possible to define the individual or class at risk of harm (Att Gen v Hartwell (supra), Lord Nicholls at para 21; O'Dwyer v Chief Constable of the RUC [1997] NILR 403, Carswell LCJ at 411 - 412). Whether the precise victim could be identified in advance was not decisive (Palmer v Tees Health Authority (supra), Pill LJ at 102 - 107). The class may be identifiable only after the event (Dorset Yacht Co (supra)). The simplicity that no duty of care was owed, if one could not express a distinction in respect of an individual or group, should be distrusted (Barclays Bank (supra) Lord Rodger (diss.) at para 51). The SPS had to have specific regard to the danger posed by Mr Campbell when they decided to release him. If any such danger was disregarded, it should not matter that the SPS did not know exactly who Mr Campbell would harm (the so called "Hannibal Lecter paradox" derived from Akenzua v Secretary of State for the Home Department [2003] 1 WLR 741, Simon Brown LJ at para 33).

[22] It was accepted that it was not sufficient that the SPS knew of the dangers posed by Mr Campbell (K v Secretary of State for the Home Department [2002] EWCA Civ 775, Laws LJ at para 29). There had to be a duty to protect the victim (Mitchell (supra), Lord Rodger at para [58]). The SPS, who had complete control over Mr Campbell, committed an unlawful act leading to his release in breach of the prison rules and directions. The rules for assessing risk and for placing prisoners into risk categories, thus determining their eligibility for temporary release, were designed for the protection of the public. The risk assessment procedures had to be observed and, if not, there had to be liability for the resultant foreseeable loss. If there was a high risk, there ought to be no release; notwithstanding that there may be other benefits or considerations in favour of release. Where the English tort of misfeasance in public office was pled, there was no need to demonstrate proximity in the sense required in negligence cases (Akenzua (supra), Simon Brown LJ at para 35). In the present case, the prison rules were sufficient to create a nexus between the SPS and the deceased. There was nothing unfair, unjust or unreasonable about imposing a duty of care where the SPS negligently disregarded a specific rule relative to a violent and dangerous prisoner. The public were entitled to expect that the SPS would follow its rules and not release a prisoner in such circumstances.

[23] Thirdly, the Lord Ordinary's decision on proximity had been wrong. The scope of the duty on the SPS had to be assessed according to what was anticipated at the time of Mr Campbell's release. Mr Campbell was a violent and dangerous man who was capable of behaving in such a manner towards a large number of people. However, his victim was likely to be someone known to him, most likely female, upon whom he was likely to commit a serious assault with a knife. He was known to have had drug problems and unresolved intoxication and anger management issues. The first thing that he did upon release was to try to obtain drugs and it was in such a context that the deceased was murdered. A restricted group of people were at risk of harm from Mr Campbell and the deceased was at a special risk as a member of that group. There was a limit to the number of people that Mr Campbell could harm in the course of a weekend and there would come a point when the damage was too remote. It was not alleged that there was any likelihood of Mr Campbell absconding and so the scope of the duty of care was limited to his conduct during weekend leave. It was difficult to draw a line in more general terms.

[24] There were other potential indicators or contra-indicators as to whether a duty was owed. First, a pure omission pointed against there being a duty of care (Stovin v Wise (supra)). Equally, a positive act would support the imposition of a duty of care. Secondly, where there was no specific responsibility for doing something, and no specific thing which the defender had failed to do, this would run contrary to the imposition of a duty of care. For example, a health authority did not have specific responsibility for detaining patients (Palmer v Tees Health Authority (supra). The Home Office did not have a specific duty to prevent prospective deportees from committing crimes (K v Secretary of State for the Home Department (supra)). A bank did not have specific responsibility for ensuring that HMRC collected sums due by third parties (Barclays Bank (supra)). Thirdly, where it was unclear what the defender should or should not have done, that ran contrary to the existence of a duty of care. Such contra-indicators did not arise here. On the contrary, there was an act and a specific responsibility.

[25] Finally, it was contended, it would not be appropriate to dispose of the action without hearing evidence on the basis that a duty of care could not be owed (Couch v Attorney-General [2008] 3 NZLR 725, Elias CJ, at paras [67] - [68] and [124]).

[26] On the pursuer's claim in terms of Article 2, the pursuer should be entitled to seek to establish in evidence whether the requisite risk to the life of the deceased existed. The pursuer had made sufficient averments to establish a real and immediate risk of serious and violent assault. It was not necessary for there to be a specific threat to kill; there was a risk to life in the present circumstances just as there had been in the case of Mr Campbell's earlier assault on his ex-wife and her friend, for which he had originally been charged with attempted murder. If the strength of the risk was accepted as sufficient, it was not necessary to identify a specific individual as the likely victim (Mastromatteo v Italy (supra); Giuliani & Gaggio v Italy (2012) 54 EHRR 10).

Defenders and respondents

[27] The Lord Ordinary had correctly analysed the authorities upon which he was addressed and the action had been properly dismissed for the reasons he had given. It had been appropriate for the Lord Ordinary to have decided the case by reference to a lack of proximity. In any event, the same result would have been arrived at by the alternative route of analysing whether the pursuer's case fell within a special category by virtue of the defenders having control of Mr Campbell as custodian or creating a danger by releasing him.

[28] The balancing of the three elements of the tripartite test was problematic, but the court should have particular regard to the familiar categories of case where it was known that duties of care do or do not exist (Caparo Industries (supra), Lord Bridge at 618). The present case was an example of a distinct and recognisable category of case (Mitchell (supra), Lord Brown at paras [81] - [82]) in which it was said that a duty was imposed by virtue of the defender's ability to exercise control over a third party. In such "custodial agency" cases, or cases where the defender had "control over the wrongdoer", such as those concerning prison authorities (Clerk and Lindsell on Torts (20^th ed), at para 14-43; Charlesworth & Percy: Negligence (12^th ed), paras 2-88 - 2-89 and 2-304), the limiting factor was proximity (Akenzua (supra), Simon Brown LJ at para 33, following K v Secretary of State for the Home Department (supra), Laws LJ at para 30 (adopted by Simon Brown LJ at para 47); Mitchell (supra), Lord Brown at paras [81] and [82]). It was necessary therefore for there to be an identifiable individual or class of individuals in order to avoid imposing a duty of care towards an indeterminate class for an indeterminate period.

[29] The pursuer alleged a failure by the SPS to carry out a risk assessment in respect of the release of Mr Campbell. However, the improper exercise of a statutory power or duty did not of itself found liability. Whether or not there was liability in respect of the manner of exercise of statutory powers was to be determined according to the common law (X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Gorringe v Calderdale MBC [2004] 1 WLR 1057, Lord Steyn at para 3, Lord Hoffmann at paras 38 - 39). All else being equal, someone who acted positively and caused injury was as open to liability in negligence whether acting voluntarily or in implement of a statutory duty (see, for example, Gibson v Orr 1999 SC 420). However, public law considerations of whether the exercise of a statutory power was intra or ultra vires had to be kept separate from private law considerations in negligence (X (Minors) v Bedfordshire County Council (supra), Lord Browne-Wilkinson at 733- 734). There was no liability in respect of the proper exercise of a statutory power or discretion (Dorset Yacht Co (supra), Lord Reid at 1031). The existence of a statutory power did not create a duty. In this case there was insufficient specification of the manner in which the SPS had wrongly exercised what was a discretionary power. The test in any particular situation involved a consideration of the underlying rationale. In Dorset Yacht Co (supra), Lord Diplock had explained (at 1070) the reasoning underlying the principle; notably that it was arbitrary and unjust to impose liability for criminal acts upon a responsible authority simply on the basis that the act was committed prior to a criminal's lawful release from prison.

[30] The question posed by the pursuer, in relation to proximity, involved identifying the persons with whom the SPS, at the point of release, would have expected Mr Campbell to "have dealings" during his weekend at liberty. After his release at Buchanan Street bus station, he could have gone anywhere. A duty of care of that kind is, for all practical purposes, a duty of care to the general public, ie anyone with whom he would come into contact. The deceased fell very far short of being a victim in the category of "predictable target" (cf O'Dwyer v Chief Constable of the RUC (supra) Carswell LJ, at 412-3). Accordingly, the Lord Ordinary had been correct to determine that the case was irrelevant.

[31] The pursuer had argued there was no need for close proximity because the deceased had been in a "special category". The first criterion was that of control, which defined a category of case derived from Dorset Yacht Co (supra), (eg State of New South Wales v Godfrey [2004] NSWCA 113, Spigelman CJ at paras 23, 34 and 35; and Couch v Att Gen (supra)). The fact that the SPS had control was not a point of distinction, nor was the need for assessment of risk to the public by virtue of the prison rules. The risk to the public was one of a variety of factors relevant to an application for short leave. It was important to avoid the wisdom of hindsight and the articulation of a duty to a person who, by chance, formed a "predictable target" (Couch v Attorney-General (supra), Tipping J at para 124).

[32] If proximity were required, the pursuer's pleadings did not sufficiently narrow the case so that the deceased could be seen to be within the proximate reach of the SPS. The criterion was whether the deceased was within the immediate range of harm linked by time, place and/or circumstances. The duties averred by the pursuer to this end, notably a duty not to release a violent and dangerous prisoner, such as Mr Campbell, on short leave if such prisoners presented a real and immediate danger, were for practical purposes owed, if at all, to members of the public. There was nothing in the pleadings to demonstrate that the deceased fell within a category of individuals at special risk or forming a "predicable target" to whom a specific duty of care was owed.

[33] Any analogy between dangerous articles and dangerous persons had not been drawn in prisoner and custodian cases. The cases where a defender had specifically created a risk or danger were of a separate type (Att Gen v Hartwell (supra)) forming a sub-set of cases involving third party intervention (Mitchell (supra), Lord Hope at para [23], Lord Brown at para [82]). Mr Campbell's dangerousness did not take the present case outwith the generality of cases where a wrong was perpetrated by someone with supervision and control (Mitchell (supra), Lord Brown at para [82] citing Dorset Yacht Co (supra)). Such cases had not hitherto been analysed by the courts in terms of the creation of risk by defenders.

[34] A duty might be owed to the public under Article 2 of the European Convention when prisoners were released and went on to commit crimes (Maiorano v Italy (supra); Giuliani & Gaggio v Italy (supra), para 244 under reference to Mastromatteo v Italy (supra) at para 67), but no case had succeeded on the merits and the point remained open. Whilst there was uncertainty as to whether there was a need to identify a particular individual or group, it was at least necessary to demonstrate a real and immediate risk to life rather than some more remote risk of violence. The standard was high, fixed and invariable; some risk to life falling short of "real and immediate" being insufficient (Van Colle v United Kingdom, 13 November 2012, European Court of Human Rights (no 7678/09)).

[35] Whilst the pursuer sought a proof before answer, it was possible to dispose of cases of this type without evidence (Mitchell (supra), Lord Hope at para [12]). In order to avoid dismissal, the pleadings had to give clear specification of the reasons why it was alleged that the SPS ought to have anticipated the requisite "real and immediate" or "present and continuing" risk to life (Mitchell (supra), Lord Hope at paras 31 - 34 and para 70; Rabone v Pennine Care NHS Trust [2012] 2 AC 72, Lord Dyson at para 12 under reference to Osman v United Kingdom (supra) at para 116). The pursuer had pled only that there was a real and immediate risk of violence and so, as a matter of relevancy, had not even attempted to meet the requisite standard.

Decision

[36] The pursuer's claim under Article 2 of the European Convention may be dealt with in relatively short compass on a consideration of the pleadings. The test of whether the deceased's rights under Article 2 were breached has been expressed by the European Court of Human Rights in Van Colle v United Kingdom, 13 November 2012 (no 7678/09) (at para 88, under reference to Osman v United Kingdom [1998] 29 EHRR 245 at para 116) as follows:

"Not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For the Court to find a violation of the positive obligation to protect life, it must be established 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 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".

[37] It was explained in Osman v United Kingdom (op cit) that the reasons for the limitation are to be found in public policy; notably the need to avoid imposing impossible or disproportionate burdens on public authorities. A pursuer must thus demonstrate "a real and immediate risk to the life of an identified individual". It is not sufficient to aver any lesser degree of risk or danger. Nor is it sufficient to aver a real and immediate risk to life in respect of a class of persons as a generality in order to establish the requisite risk to an individual member of that class.

[38] The pursuer avers that, at the time of his release, Mr Campbell "presented a real and immediate risk of danger to the public". She avers that the SPS knew or ought to have known this and that he would come into contact with family members and their associates. The SPS, it is said, knew that he would be violent to those with whom he would be expected to "have dealings" during the weekend release. He thus posed a real and immediate risk of danger to those persons with whom he would be expected to "have dealings" during his weekend release. Assuming that the deceased was one of the people with whom Mr Campbell would be expected to "have dealings" during his weekend release, the pursuer still makes no averments that the SPS knew or ought to have known of any particular risk to the deceased as an identified member of that class.

[39] The vulnerability of a class of persons as a whole may be taken into account as a relevant factor in determining whether or not the first stage of the Osman test (the existence of a real and immediate risk to the life of an identified individual) is satisfied. However, the pursuer has failed to specify the requisite degree of risk to life either to the deceased or to the wider class of persons with whom Mr Campbell would have been expected to "have dealings". Of course, the pursuer might have founded upon Mr Campbell's threats to kill the deceased, had they been known to the defenders, but such threats are said to have occurred only after Mr Campbell's release and therefore, as was conceded, fall to be treated as irrelevant.

[40] Standing the pursuer's subsidiary argument for the purposes of the common law claim that the defenders may have created a risk or danger by releasing Mr Campbell (infra), it is also worth noting at this stage that it would not be appropriate to adapt or lower the threshold derived from Osman in circumstances where the State is alleged to have created the relevant risk (Van Colle v United Kingdom (supra) at para 91). The Lord Ordinary was correct, therefore, to hold that the pursuer's Article 2 claim was bound to fail.

[41] The question that follows is whether it remains possible for the pursuer, in the absence of the averments that would satisfy the Osman test in respect of a breach of Article 2, to succeed in her claim against the defenders at common law. The court is not bound to follow the European Court jurisprudence, where the pursuer's case is not founded upon a breach of the Convention. However, similar policy considerations may come into play when determining the scope of any quasi-delictual duty of care owed by the SPS to the deceased (see, for example, Hill v Chief Constable of West Yorkshire [1989] AC 53, Lord Keith at 63). Conceivably, a not dissimilar test to that set out in Osman might ultimately be arrived at when considering the common law of negligence, where the act or omission is that of a public authority in relation to the wrongdoing of a third party (K v Secretary of State for the Home Department [2002] EWCA Civ 775, Laws LJ at paras 32 - 33). However, the two regimes may perhaps not yet be that similar or interlinked and the domestic law may set a higher standard than that contained in article 2.

[42] The pursuer avers that the SPS owed a duty of care to the deceased not to release violent and dangerous prisoners. She states that they negligently breached that duty by releasing Mr Campbell from prison on short leave in breach of the rules and directions governing such decisions. The pursuer contends that the circumstances are novel insofar as no reported case has dealt with a negligent release of a prisoner on leave (cf Bromiley v United Kingdom [2000] 29 EHRR CD 111). Specifically, the pursuer seeks to distinguish this case from previous instances where prisoners have escaped from custody or been released on parole as a result of negligent conduct and thereafter caused harm whilst at liberty. Although it may be that no reported case has proceeded on precisely the same facts, it might be said that the pursuer's situation falls generally into the category of case exemplified by Dorset Yacht Co v Home Office [1970] AC 1004 concerning the liability of negligent public custodians for the criminal acts of third parties in their care. In that context, the court is in familiar territory and one to which it must return (infra) after reference to the overarching general principles.

[43] The court wishes to avoid trampling once again over well worn ground. However, it may be worthy of comment in limine that what is being attempted is an extension or expansion of what have hitherto, at least in recent times, been relatively well settled boundaries defining the existence of a duty of care in practical terms. The fact that arguments of this type are still advanced with some frequency, however, suggests that there is a hope, or perhaps even an expectation, that argument based almost exclusively upon general principles of legal theory, which have been repeatedly rehearsed over the many years from Donoghue v Stevenson 1932 SC (HL) 31 through to Mitchell v Glasgow City Council 2009 SC (HL) 21 and beyond, will persuade the superior courts to move these boundaries, even if there appears to have been little enthusiasm within the democratic processes in society to do so (cf Hedley Byrne & Co v Heller & Partners [1964] AC 465, Lord Pearce at 536, quoted in Dorset Yacht Co (supra), Lord Diplock at 1058). These processes seem content to leave the law as it appears to be; leaving the criminal injuries compensation scheme and other mechanisms to relieve the effects of any perceived injustice caused by the impecuniosity of most offenders.

[44] In essence, the pursuer seeks to pursue, with renewed vigour, the "And why should it stop there?" approach of Lord Denning MR in Dorset Yacht Co in the Court of Appeal ([1969] 2 QB 412 at 425). Lord Denning had recognised (at 426) that, with the exception of a case from Ipswich county court in 1951 (Greenwell v Prison Commissioners 101 LJ 486), there had been no reported case of a third party securing damages for the consequences of criminal conduct on the part of an escaped or wrongly released prisoner. Nevertheless, he considered that the Home Office ought to owe a duty of care at least to those resident "in the neighbourhood" of a Borstal. In particular, he reasoned:

"... the officers of Borstal institutions should be liable for negligence. And the reason I say this is because of the people who live in the neighbourhood. When the authorities open a Borstal institution, those living nearby are surely entitled to expect that reasonable care will be taken to protect them. Their confidence in the law would be undermined if the judges were to declare that the authorities owed no duty of care to them".

In this respect, Lord Denning was, it may be surmised, following a course plotted previously in Hedley Byrne & Co v Heller & Partners (supra) and perhaps even earlier by Lord Atkin in Donoghue v Stevenson (supra at 44) itself when he proceeded to answer his own question: "Who, then, in law, is my neighbour?" However, Lord Denning's judgment still confined the scope of the duty to those physically proximate to the penal institution.

[45] The defenders seek to persuade the court to follow the reasoning of Lord Diplock in his judgment in Dorset Yacht Co, which was expressly followed by Lord Keith in Hill v Chief Constable (supra at 61-62). Lord Diplock focused on the need for "special relations" (Smith v Leurs (1945) 70 CLR 256, Dixon J at 262) between the party damaged and the party sought to be made responsible. After analysing the development of the English common law up to that point (in particular in Ellis v Home Office [1953] 2 All ER 149 and D'Arcy v Prison Commissioners, The Times, 17 November 1955), he pointed (at 1063) to five characteristics which could be said by that stage to be necessary for liability to be imposed upon a person in respect of damage caused by the tortious act of a third party. Having done so, he settled (at 1070) on the following test for liability in the circumstances of a custodian for the criminal actions of persons in his care:

"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."

In the case of the Borstal escapee, the particular risk was identified as being that:

"in order to elude pursuit immediately upon the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped" (ibid).

Significantly, Lord Diplock cautioned against recognising a duty of care to a wider category of members of the public so long as Parliament was content to leave the general risk of damage from criminal acts to lie where it fell without any private law remedy except against the criminal himself. In Dorset Yacht Co, the risk flowed from the foreseeability of the behaviour of borstal trainees escaping from an open institution. The duty of care was limited to the prevention of the predictable activities of prisoners in pursuit of a means of escape and in relation to those in the physical vicinity of the borstal. In the present case, the basis of the risk to the deceased has not been so precisely elucidated.

[46] The law has moved on since Dorset Yacht Co, perhaps most recently as a consequence of Caparo Industries v Dickman [1990] 2 AC 605, which may be seen as an attempt to remedy perceived deficiencies in Lord Atkin's single test of reasonable foreseeability of harm (Donoghue v Stevenson (supra) at 44) and Lord Wilberforce's "two stage test" in Anns v Merton Borough Council [1978] AC 728 (at 751). The latter added a second factor, notably "whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed ...". Instead of a single or a two stage text, Caparo Industries (supra, Lord Bridge at 618) offered a tripartite test of (1) foreseeability, (2) proximity and (3) fairness, justice and reasonableness. However, at the same time, perhaps in accordance with the English common law approach to both legal reasoning and categories of tort, emphasis was placed on the need for courts to attach greater significance in practice to traditional situations in which it was established that a duty of care did, or did not, exist (Lord Bridge, op cit, following Sutherland Shire Council v Heyman (1985) 60 ALR 1, Brennan J at 43-44; see for similar earlier views Hedley Byrne & Co (supra), Lord Devlin at 525; and Dorset Yacht Co (supra), Lord Diplock at 1058-9).

[47] Thus, Caparo Industries (see also Lord Roskill at 628, Lord Oliver at 633) endorsed the limitation of development in the common law by the imposition of an "incremental test" (Customs &Excise Commissioners v Barclays Bank [2007] 1 AC 181, Lord Bingham at para 4). If a case could be readily categorised, and there was authority for imposing a duty of care in that category, that authority ought to be followed. If not, the law ought to be developed only by analogy with existing precedent. The wisdom of such an approach has been widely accepted, and indeed was recognised by the parties in the pursuer's case, albeit that it would, as a generality, appear to run somewhat contrary to the Scots law approach of deduction from principle rather than induction from precedent. Lord Bingham acknowledged (in Barclays Bank (supra) at para 7) the shortcomings of such a model, which would encourage slavish adherence to precedent without an underlying foundation in principle. He reasoned that:

"... the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, ... to find ... that the proximity and policy conditions of the threefold test are satisfied. The converse is also true".

[48] Reference to "the tripartite test" derived from Caparo Industries may now be regarded as the citation of trite law. The courts are certainly familiar with its expression. There is nevertheless a danger that statements of principle at such "a high level of abstraction" (see Barclays Bank (supra), Lord Mance at para 83) may be relied upon without due consideration either for their meaning in the context of the particular case or of the import of their application to cases in a wider context. It may be, and often is, simple to assert on behalf of a victim of crime that it is fair, just and reasonable that a public authority, whose negligent actions may have prevented the crime, should compensate that victim. It may be equally easy to assert, with hindsight, that what happened ought to have been foreseen by such an authority as something which might affect a member of its own, and by definition proximate, public. As has been observed, perhaps the three elements of the tripartite test are also "merely facets of the same thing" (Caparo Industries, Lord Oliver at 633).

[49] It is recognised at least that, when using the general language of "neighbourhood" in Donoghue v Stevenson (supra) and Dorset Yacht Co (supra), the concepts of foreseeability and proximity are not entirely distinct and it may be misleading to refer to the Caparo Industries test as truly tripartite given "the loose and interlocking nature of the three elements of foreseeability, proximity, and fairness" (K v Secretary of State for the Home Department [2002] EWCA Civ 775, Laws LJ at para 23). However, as matters stand at present, it would be incorrect to characterise the formulation of the appropriate test as a unitary one of "fairness, justice and reasonableness" within which foreseeability and proximity are mere factors, thereby returning the courts to a single test, such as that advanced in 1932. Each of the elements of foreseeability and proximity are necessary, if not sufficient, ingredients for the imposition of a duty of care. Policy considerations inform both of these two discrete but interlinked elements (Mitchell (supra), Lord Hope at para [16]). Although it would be possible to make a theoretical appraisal of the pursuer's situation by the pure application of principles of high abstraction, the practical solution for the courts in a specific case lies in analysing the particular circumstances of the case according to the category into which it falls; that category in the pursuer's case is, as already noted, that involving the liability of public custodians for the criminal actions of those in their care.

[50] The significant feature of Dorset Yacht Co (supra) is that, although it held that a public authority can be liable for damage caused by the escape of prisoners under their care, the duty of care owed was limited to those persons having property in physical proximity to the place where the prisoners were confined. As already noted, this restriction in the extent of the duty was expressed by Lord Denning in the Court of Appeal (supra) and by Lord Diplock in the House of Lords (supra). The popularity of Lord Diplock's dictum, over the speeches of the other judges, rests in his willingness to explain the reason behind it. His explanation merits repetition (1070):

"...Borstal training often fails to achieve its purpose of reformation... [T]rainees 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 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".

This is then the public policy reason for preventing recovery. Rather, as Lord Diplock went on to state, what was needed to create a duty of care was:

"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".

Lord Reid (at 1032) expressed the limitation in a quite different way by confining liability to instances where the wrong was a "natural and probable, as distinct from merely a foreseeable, result of the release". However, both Lord Morris (at 1038) and Lord Pearson (at 1055) agreed with Lord Diplock's formulation based on the "special relation" referred to in Smith v Leurs (supra, Dixon J at 261-2) and that is where the law has rested in this category of case.

[51] The circumstances in Hill v Chief Constable of West Yorkshire (supra) were described (Lord Keith at 62) as falling broadly into the "same category" as those in Dorset Yacht Co. Following Lord Diplock's dictum, Lord Keith (with whom Lords Brandon, Oliver and Goff agreed) stated:

"It appears... that in [Lord Diplock's] 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".

It was Lord Keith's view that a young female could not be regarded as a person "at special risk" in the context of the activities of the Yorkshire Ripper.

[52] The need for a special relationship between custodian and victim has continued to dominate decision making in this category of case. Thus, looking to the Court of Appeal in England, the dicta of both Lord Diplock in Dorset Yacht Co and Lord Keith in Hill were quoted at length in Palmer v Tees Health Authority [2000] PNLR 87 (Stuart-Smith LJ at paras 26 and 27), where the "crucial point" in "striking out" a claim against the defendants for releasing an allegedly dangerous psychiatric patient was the absence of a "relationship between the defendant and the victim" (ibid at para 27; Pill LJ at 108). The same consideration is evident in K v Secretary of State for the Home Department [2002] EWCA Civ 775, which involved the release of a dangerous sex offender recommended by the courts for deportation. Although Arden and Simon Brown LJJ were perhaps not enthusiastic about the reasons of principle advanced by Laws LJ (at para 23), it is clear that all considered that a "nexus or special relationship between claimant and defendant" was required (Laws LJ at para 26; Arden and Simon Brown LJJ concurring with this at paras 35 and 47 respectively; see also Simon Brown LJ in Akenzua v Secretary of State for the Home Department [2003] 1 WLR 741 at para 33).

[53] The ratio of Dorset Yacht Co was strictly applied by the Australian courts in State of New South Wales v Godfrey [2004] NSWCA 113, in which an escaped prisoner robbed a shop many miles distant from the prison and some months after the escape. Spigelman CJ (at para 21) referred, as had Lord Diplock, to Smith v Leurs (supra). He noted that the need for a special relationship, as observed by Dixon J in Smith, had been endorsed by the High Court of Australia in Modbury Triangle Shopping Centre Pty v Anzil (2000) 205 CLR 254 (Gleeson CJ at paras [29] and [30]) as follows:

"The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it...".

The latter proposition is one which comes close to the test for liability under Article 2 (supra) and which stresses the need for circumstances of almost immediate inevitability or, perhaps, at least that the damage be a natural and probable consequence (to use Lord Reid's formulation in Dorset Yacht Co) of the authority's negligence.

[54] The need for the existence of a "distinct and special risk" to the victim was to the forefront of the reasoning of the New Zealand Supreme Court in Couch v Attorney-General [2008] 3 NZLR 725. This was an extreme situation involving the murder of three persons. The alleged fault was with the parole service in allocating a person on parole for aggravated robbery, during which random and gratuitous violence had been inflicted, to work at commercial premises where considerable quantities of alcohol and cash were located. This was also a "striking out" application and one which ultimately failed because the court held that, with appropriate amendment to the pleadings, there would be "no clear impediment to [the case] succeeding at trial" (see Elias CJ at para [40]). The court considered that, on the facts averred, it was possible that the plaintiff would establish that the victims were known by the parole service to be at special risk. The majority (Blanchard, Tipping and McGrath JJ) conducted an extensive review of the authorities and concluded (para [112]) that:

"To establish a duty of care [the plaintiff] 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 [the wrongdoer]. 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 [the wrongdoer]".

The court considered that the fact that the wrongdoer was known to be at high risk of re-offending and would require close supervision, especially in relation to alcohol, amounted to no more than averment of a general rather than a special risk. However, allowing the wrongdoer to be engaged on the premises, where he was able to study the security systems and arrangements, made the premises a "predictable target" for any further robbery. Hence, the majority reasoned (at para [124]):

"...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 [the wrongdoer] had exhibited a tendency to commit random violence during a robbery".

A significant feature, of course, was that it was the defendants who had placed the eventual wrongdoer into the category of co-employee of the ultimate victims. They knew of the existence of the victims and, the court considered, it might be proved that they ought to have been aware of the distinct risk.

[55] This type of case might be thought to assist a pursuer who can demonstrate a distinct and special risk. This pursuer also attempts to gain support from O'Dwyer v Chief Constable of the RUC [1997] NILR 403. Although the views of the Northern Ireland Court of Appeal are highly persuasive, the fact that, as in Couch v Attorney-General (supra), the decision was one made in the context of the "strike out" rule (which is not the equivalent of a Scottish decision on relevancy) may be significant. Only in "plain and obvious" cases can the summary procedure of strike out be used. In any event, the facts in O'Dwyer, as with those in Couch, were special, if not extraordinary. The wrongdoer was a policeman, effectively in the employment of the defendant, who was arrested on a charge of possession of his service revolver whilst drunk. Notwithstanding that he was making specific threats in custody to shoot persons with Irish Republican connections and was known to own a semi-automatic shotgun, he was released from custody at a police station. He was re-admitted to the police station, yet released again actually armed with the shotgun. Only ten minutes later he entered the nearby Sinn Fein offices and killed the plaintiff. It is not surprising that the court considered that the plaintiff might establish liability in such circumstances. Carswell LCJ reviewed the authorities and noted the "special relationship" test. He undoubtedly stated (at 412) that, in relation to the need to identify a particular class of potential victim, the court was "not convinced that it is necessary that such a limitation must be imposed in a case such as the present". This may well have been because the case involved releasing a person carrying an automatic firearm, who was both in a deranged and an intoxicated state and who had made specific threats against a class of persons, some of whom were known to occupy offices nearby. Like the Court of Appeal in Northern Ireland, had such a combination of events been present in this case, the court may well have ordered a proof before answer, even upon the Article 2 case.

[56] The court is content to proceed on the basis of the dicta expressed in all of the cases quoted, even if there is some variance in the language used. In order to succeed, the pursuer must establish a special relationship which exposed the deceased to a particular risk of damage as a result of negligence by the defenders in the context of that relationship (ie Dorset Yacht Co, Lord Diplock at 1070 supra) or, put in another way, that she was the subject of a special or distinct risk as a consequence of the defender's actions (ie the majority in Couch at para [112] supra). Where there is an immediate risk to a person's life as a consequence of a third party's predictable activity, it may not be necessary to identify a particular class of persons beyond those under immediate threat (eg O'Dwyer at 412 supra).

[57] The court is conscious that it ought not to dismiss this action unless, even if the pursuer were to prove all her averments, she is nevertheless bound to fail. However, the court is satisfied that, applying the dicta set out above, this high test has been met. The pursuer does not set out a relevant case which could justify the court concluding that the deceased and the SPS were in a "special relationship" with each other such that the SPS's actions in relation to Mr Campbell placed her at a greater risk than that to which the general public were exposed. She does not aver facts from which it could be said that the deceased, or a class of persons of which she was a member, was at any distinct or special risk as a result the SPS's actions relative to Mr Campbell's leave. She does not aver facts whereby the negligent release of Mr Campbell exposed the general public to immediate risk of death. In all of these respects, the court agrees with the reasoning of the Lord Ordinary in his determination that there was no "proximity" between the deceased and the SPS. The court does not agree that the Lord Ordinary looked at "proximity" in isolation. Foreseeability did not arise. It had been conceded by the defenders. Fairness, justice and reasonableness are already ingrained in the defining principles which apply to this category of case. There is no necessity for a court to revisit these elements separately in every case in such a well-known and understood category.

[58] There is no basis in the pursuer's factual averments upon which it could be inferred that the SPS ought to have considered that: (a) any person was at immediate risk of harm from Mr Campbell beyond the general risk which, as an habitual and occasionally violent criminal, he posed to the general public during his periods at liberty (legitimate or otherwise); or (b) the deceased, or a class of person, would be a particular target of his violence. The averment that he posed a danger to persons with whom he would "have dealings" during his weekend leave says little more than that any person with whom he came into contact, from the moment of stepping off the bus in central Glasgow, could potentially be at risk from him because of his underlying recidivism.

[59] Were the court to consider separately the fairness, justice and reasonableness of the situation, it would have reached the same view that the pursuer's case cannot succeed. For the reasons given, whatever the particular consequences to the pursuer, if liability were to be imposed upon the SPS on such a tenuous basis as is advanced, it would potentially render the SPS and perhaps also the Parole Board open to claims from any person who became a victim of a prisoner released before the mandatory date of his/her liberty. Such a regime would have potentially serious consequences for the proper functioning of both these institutions in the care and rehabilitation of prisoners and hence to society as a whole.

[60] For the sake of completeness, the court does not consider that the case falls within the category in which an institution, such as the police, has allowed an apparently dangerous person to continue to have access to a firearm in circumstances exposing the public to an immediate risk to life (eg Att Gen of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, Lord Nicholls at 1283; and possibly also O'Dwyer (supra)). It does not agree that the Lord Ordinary ought to have regarded the case separately as one in which the SPS had created a danger in the same way as the courts would look at the escape of a dangerous thing. The distinguishing feature of this type of case from that of the escape of a dangerous thing is the very existence of third party action as the proximate cause of the injury.

[61] For the foregoing reasons, the reclaiming motion will be refused and the court will adhere to the interlocutor of the Lord Ordinary dated 26 May 2011.