Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2016] SC EDIN 51

PD27/15

 

 

JUDGMENT OF SHERIFF P A ARTHURSON, QC

 

in causa

 

 

MR MUGO DALMAR

 

Pursuer

against

 

THE SCOTTISH MINISTERS

Defenders

 

Representation:  Pursuer: Forbes, Advocate; Compensation Lawyers (Scotland) Limited

                                            Defender: Higgins; Anderson Strathern LLP

 

 

 

EDINBURGH, 2 June 2016

 

The Sheriff, having resumed consideration of the cause:

Finds the following facts to be admitted or proved:

[1]     The pursuer is currently detained at Mortonhall Immigration Removal Centre, Swinderby, Lincoln, awaiting deportation by the Home Office to Somalia.  His date of birth is 11 July 1972.  The defenders are the Scottish Ministers.  The defenders have responsibility for the safety of prisoners detained within the prison estate in Scotland, including the pursuer during his detention in February2012 at HMP, Edinburgh. 

[2]        On 5 February 2012 at about 16.05 hours within HMP, Edinburgh, prisoner Damian Fowler assaulted the pursuer with a bladed article.  The assault occurred in Ingliston 1 Hall whilst the pursuer was within cell 1/40 which was occupied by prisoner Michael Nisbet at that time.  Ingliston 1 was a segregated hall providing protection for prisoners on remand for or serving sentences in connection with sexual offences.  The pursuer had been transferred to HMP, Edinburgh from HMP, Dumfries in 2009.  On 3 July 2012 Damian Fowler was convicted on indictment of an assault to injury and permanent disfigurement and sentenced on 12 July 2012 to a period of 32 months imprisonment as a result of the incident on 5 February 2012.

[3]        Ingliston 1 Hall comprised a south and west wing set out in a right angle formation, with a central desk area protected by gates to each wing.  The pursuer occupied cell 1/43 in the south wing.  Michael Nisbet occupied cell 1/40 in the south wing.  Damian Fowler occupied cell 1/66 in the south wing.  In accordance with standard practice, five members of staff were on duty at Ingliston 1 on 5 February 2012, comprising a desk officer and two officers on each wing.  Three fixed CCTV cameras were in place in each of the west and south wings.  This allocation of staff was agreed by the Prison Officers’ Association and Prison Governor.

[4]        Shortly after the hall had been opened up for recreation at about 2.00 pm, on 5 February 2012, prison officer McLay in the course of his duties on the south wing heard a prisoner Francis Eadie make the following comment:  “It’s not like Dalmar to piss someone off”.  Officer McLay asked “What has he done now?”  The answer was “Nothing”.  The comment by prisoner Eadie was delivered in a joking or sarcastic manner.

[5]        About ten minutes later officer McLay saw the pursuer in his cell (1/43) lying on his bed.  The officer asked the pursuer “Have you pissed someone off?”, or “You’ve been pissing someone off?”  The pursuer said “No”.  Officer McLay said to the pursuer.  “If you have any issues, speak to me”.  The pursuer did not do so.  Officer McLay did not disclose this conversation to his colleagues or act upon it.  The pursuer, Michael Nisbet and Damian Fowler had spent time during the afternoon recreation period together in Michael Nisbet’s cell.

[6]        After committing the assault on the pursuer, Damian Fowler made the following remarks to prison officers:

(i)         “He had it coming”

(ii)        “There’s no point in lying, I’m caught bang to rights anyway”

(iii)       “I’m sick of his games”

(iv)  “All this shit about being black.  If I was in a black prison saying those things I would get stabbed as well”

(v)   “I’m not racist, it’s him, he’s racist.  Every black guy that comes into this hall are fine until he talks to them and tells them that every white guy is a racist in this place.  If I was to do that in a black jail, I’d get a lot worse than just slashed” and

(vi)  “I’ll put my hands up to it, it was me”.

 

[7]        A review of the CCTV footage from within Ingliston 1 was carried out by Police Sergeant Calum Welsh on 5 February 2012 at 18.35 hours.  It was noted that there is a five-minute delay on the CCTV system.  The following footage was logged by PS Welsh from camera 503:

 

16:04:48	Suspect Damian Fowler exits cell 60 (occupied by Henry Williamson) on the left, wearing dark top and jogging bottoms; walks across the hall to cell 40, occupied by Michael Nisbet who is seen walking down towards his cell (40) from the desk area carrying two bottles (plastic) of water.
16:05:02	Nisbet and Fowler enter cell 40.
16:05:07	Fowler exits cell 40.
16:05:10	The pursuer exits cell 40 holding the right side of his face, wearing a maroon T-shirt and black jogging bottoms.
16:05:11	Fowler walks across the hall towards cell 66 (his cell) and enters.
16:05:20	Prison officers put prisoners in cells and take control of the pursuer and walk him to the front desk.

 

[8]        The weapon used by Damian Fowler to attack the pursuer was a razorblade moulded into a plastic toothbrush.  Damian Fowler thereafter concealed the blade in the u-bend of the toilet of his cell.  The plastic part of the weapon was found outside the prison directly underneath Damian Fowler’s cell window.

[9]        Immediately following upon the attack by Damian Fowler on the pursuer, Michael Nisbet was taken to a cell and then escorted by officers to a segregation area.  He was then taken to St Leonards Police Station, Edinburgh where he was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 and thereafter at 2.10 am on 6 February 2012 interviewed by officers.  Damian Fowler was detained at St Leonard’s Police Station and interviewed by officers there at 3.02 am on 6 February 2012.

[10]      At about 5.00 pm on 5 February 2012 officer McLay received a note from prisoner Henry Williamson with the request that it be passed on to the hall manager about the events of the afternoon.  The letter has subsequently been lost.  Its contents comprised a reference to Damian Fowler sitting in his cell, becoming agitated and indicating that he was going to target officer McLay, who had put him on report the previous day; and further that after dinner, prior to the assault on the pursuer, Damian Fowler stated that he needed to get out of the hall and was going “to get” the pursuer, to whom he referred as “that black bastard”.

[11]      No officers were physically present in the south wing when the pursuer was attacked.  The serving of meals in both wings having concluded at approximately the same time, officers had gathered in the central desk area.  Officers retained clear lines of sight to both wings from the central desk area.  CCTV cameras, for reasons of privacy, were not directed into the cells in the wings.  The overall configuration of Ingliston 1 permitted officers sight of the activities of prisoners within the open areas of each wing.  From no point, either from a wing or from the desk area, did officers have a fully unrestricted view of the open areas due to the presence of prisoners.  Sightlines were maintained even when the gates to the wings at the desk area were closed.

[12]      A staff presence in the south section at the time of the assault from the pursuer would not have reduced the risk of or prevented the assault perpetrated on the pursuer by Damian Fowler.

[13]      Following upon the assault, the pursuer was taken to Edinburgh Royal Infirmary by ambulance.  At 6.50 pm on 5 February 2012 he was interviewed there by police officers.  As a result of the assault, the pursuer sustained the following injuries and received the following treatment:

(i)      A 13 x 1 cm wound to the right temporal region;

(ii)     Arterial bleeding from his head;

(iii)    He was taken by ambulance to hospital and arrived at hospital.  1.5 litres of      saline was administered by paramedics prior to the pursuer arriving at      hospital;

(iv)    He received a further 1.5 litres of saline and a blood transfusion of 2 units in     Accident and Emergency;

(v)     The bleeding was stopped by the application of a vicryl suture to the arterial     spurt;

(vi)    He was admitted to hospital under the care of the surgical team and the wound           was closed with 20 x 3.0 vicryl sutures and one superficial layer of sutures             consisting of 34 x 6.0 ethilon sutures;

(vii)   He was returned to prison after one night in hospital;

(viii)  His alternate sutures were removed on 17 February 2012 and the remaining      sutures were removed on 20 February 2012;

(ix)    He received co-codamol for pain; and

(x)     The wound healed well but he has been left with a prominent and noticeable    scar measuring between 10 and 11 cm in length extending from above his right            eye to just in front of his right ear.  It is thicker in some parts than others and    there is scarring showing where the stitches were placed;

(xi)    In addition, the pursuer has continued to take painkillers and has had occasional migraine headaches and nightmares on an infrequent basis.  The scarring area is particularly uncomfortable in hot conditions.

 

Finds in Fact and Law

That the defenders fulfilled their duty to take reasonable care for the safety of the pursuer during his detention at HMP, Edinburgh, on 5 February 2012.

 

THEREFORE:

[1]       Refuses the pursuer’s crave for decree;

[2]       Pronounces decree of absolvitor in favour of the defenders;

[3]       On the opposed motion of the pursuer, sanctions the cause as suitable for the employment of junior counsel; and

[4]       Reserves all remaining questions of expenses and appoints parties to be heard thereon and assigns 8 July 2016 at 9.30 am within the Sheriff Courthouse, 27 Chambers Street, Edinburgh, as a diet therefor. 

 

NOTE

Background

[1]       This is an action for damages in respect of solatium only at the instance of a former prisoner at HMP, Edinburgh.  The pursuer contended at proof that a prison officer at Ingliston 1 Hall had been made aware on the afternoon of 5 February 2012 of a threat of violence directed against him and that the officer had failed to take appropriate and effective measures to prevent an attack upon him, which occurred shortly after 4.00 pm that day, from occurring.  The pursuer further contended that prison officers had a duty to maintain a continual presence in the south section of the hall while the prisoners were in association with one another over the period of the early evening meal that day, which is when the attack occurred.

[2]       There was no issue between the parties that the assault actually occurred and indeed that the prisoner who committed it was subsequently convicted and sentenced on indictment.  A large part of the significant injuries sustained by the pursuer were also the subject of agreement, together with details of CCTV footage, timings of events, and comments made by the attacking prisoner to officers after the assault.  As the evidence in the case developed, it became clear that there were two principal issues for determination by the court, namely:

(i)    whether officer McLay did indeed communicate a specific threat to the pursuer when he spoke to the pursuer in his cell during the afternoon of 5 February 2012; and

(ii)   whether a staff presence in the south section of the hall would have reduced the risk of or prevented the assault upon the pursuer from occurring.

[3]        The pursuer gave evidence on commission over a period of two days from a detention centre in Lincolnshire on his own behalf in the course of September 2015.  Further evidence was led on his behalf at the diet of proof in May 2016 from a fellow prisoner Michael Nisbet, DC Peter Stark, prison officer David Jamieson (desk officer at the hall on 5 February 2012), and John McCaig, a highly experienced former deputy prison governor who gave expert evidence on the pursuer’s behalf.  The defenders led evidence from prisoner officers James McLay, Aaron Stevens and Brian Armour, together with expert evidence from Mr Ian Gunn, a former prisoner governor also with considerable experience within the prison estate.

 

Evidence led on behalf of the pursuer

[4]        Over the two video link sessions during which the pursuer gave evidence, I formed a favourable impression of his credibility.  He gave evidence in an articulate, measured and clear manner and I formed the view that he was trying his very best to tell the court the truth about his recollection of the events of 5 February 2012.  He narrated that on the afternoon of 5 February 2012 he had been lying in bed in his cell with the door slightly open when officer McLay came in and said that officers had information that a prisoner was planning to attack the pursuer that evening and therefore if the pursuer was going to go to sleep officer McLay suggested that he lock his door.  Prisoners have the facility of locking doors from the inside if they so desire.  The pursuer advised that he had previously complained to the prison governor about officer McLay, among other officers, but without naming him.  The pursuer said that he proceeded to lock the door of his cell, remained there for a minute or two and thereafter left his cell in order to enquire about the information which he had been given.  He approached a fellow prisoner, Michael Nisbet, in that prisoner’s cell and reported the conversation to him.  Mr Nisbet left the cell and returned.  The pursuer was sitting eating his meal at the innermost point of the cell.  Damian Fowler was hiding behind Michael Nisbet.  The pursuer stated that Michael Nisbet jumped to the side and that Damian Fowler had then proceeded to strike him with a bladed weapon on his forehead and right temple.  Damian Fowler then left the cell.  The pursuer proceeded towards the desk with a bleeding head injury, and was taken by ambulance to Edinburgh Royal Infirmary.  His injuries were considerable and are the subject largely of agreement between the parties.  He required several layers of stitches to a significant laceration on the right side of his face and sustained a severed artery.  He has been left with considerable scarring.  That evening at Edinburgh Royal Infirmary he spoke to police officers who noted a statement from him consistent with the account given by him in his evidence before the court.  He was discharged from hospital the next day and in due course was transferred to HMP, Dumfries.  He has continued to suffer from infrequent migraines and nightmares.  In addition, the area of scarring has been particularly uncomfortable in hot conditions.

[5]        Michael Nisbet confirmed that he had been interviewed by officers at 2.10 am on 6 February 2012 at St Leonard’s Police Station, Edinburgh, having been taken by officers after the assault into a segregated area and thereafter transported to St Leonard’s where he was detained by officers.  He confirmed that at his interview he had given truthful and accurate information to officers.  At interview he advised that the pursuer had brought his dinner to his cell and told him that officer McLay had advised of intelligence put to the effect that someone was going to attempt to attack the pursuer that day.  This conversation took place, of course, before the actual assault, as the prisoners were collecting their meals between about 3.45 pm and 4.00 pm.  Mr Nisbet advised in his evidence that at the time he considered that officer McLay had a bad attitude towards prisoners, but had now changed his mind about that.

[6]        DC Peter Stark was the reporting officer in the case brought in due course on indictment against Damian Fowler.  He interviewed Michael Nisbet and Damian Fowler at St Leonard’s Police Station on 6 February 2012.  With regard to the interview with Michael Nisbet, the witness confirmed that Michael Nisbet told officers that the pursuer told him that prison officer McLay had informed him that there was intelligence that the pursuer would be attacked that day.  He further confirmed that a letter from prisoner Henry Williamson had been made available to police officers but had subsequently been destroyed.  The witness recalled that the letter said that Damian Fowler was going to stab officer McLay.  He said that the handle of the implement used as a weapon had been found outside the prison directly under the cell window of Damian Fowler.  He confirmed that Henry Williamson had refused to provide a statement.  He himself had seen Williamson’s letter and had heard officer McLay’s account of it. 

[7]        Prison officer David Jamieson was the desk officer at Ingliston 1 on 5 February 2012.  He confirmed that two members of staff were allocated to each of the south and west wings and that he had remained at the desk as a fifth member of staff of the hall.  Dinner had been served between 3.45 pm and 4.00 pm from an open gallery at a time of open association of prisoners with all cell doors open.  He spoke to the location of CCTV cameras within the wings which he confirmed served the purposes of deterrence and observation.  He recalled being at the desk area at the time of the assault at 4.05 pm, which had taken place in Michael Nisbet’s cell 1/40.  He confirmed that if he had received information such as that allegedly conveyed to the pursuer by officer McLay, the alleged attacker, if the name was known, would be locked in his cell, which failing the intended victim would himself be locked in.  The witness described officer McLay in positive professional terms and indicated that, in his view, if officer McLay had information to the effect that a prisoner was going to be attacked, he would have expected him to act on that information.  The witness also emphasised the clear lines of sight into both south and west wings from the central desk in Ingliston 1 Hall. Overall, the witness was quite comfortable that, standing the configuration of the hall, he would have had a good sight of the activities of prisoners within the wings. In the view of the witness, the presence of an officer within the south section would not have deterred an attacker, and in circumstances where a weapon would be concealed, an officer would not as a matter of course stop one prisoner from crossing the wing to another prisoner’s cell.

[8]        John McCaig gave expert evidence for the pursuer.  He had been employed by the Scottish Prison Service from 1974 until 2009, rising to the post of deputy governor at HMYOI, Polmont and from 2006 until 2009, serving as Deputy Chief Inspector of Prisons for Scotland.  He currently served as a member of the Parole Board for Scotland.  He spoke to the restricted single dimension of CCTV, which he emphasised could never be a substitute for the presence of staff within the wings of a hall.  He confirmed that a staff quota of five on a hall was standard practice.  In the scenario of events presented by the pursuer, the key to maintenance of good order and safety would be the removal from association of either the potential attacker or, which failing, the potential victim.  He emphasised the importance of communication between officers with regard to information and to the discretion of the officer who received and analysed the information with regard to its importance and any future action to be taken thereon.  He maintained that the presence of staff on the wing would have greatly reduced the likelihood of the assault upon the prisoner which did occur, albeit he accepted that the assault may well still have occurred.  He agreed that it was likely that any weapon would be concealed and that accordingly officers would not have foreseen the assault even if they had been in the section.  He accepted that cell 1/40 was closer to the desk area than the cells at the extremity of the south section and that even if officers had been in the section, they could in fact have been further away from cell 1/40 than those who were present in the desk area at the time of the attack.  He accepted that officers would think nothing of one prisoner, at a time of open association, going from one cell to another and that if a weapon had been concealed, the officers would not have stopped a prisoner who was carrying a weapon in this way from going into another cell.  He accepted that the phrase “constant supervision” which appeared within his report was not a phrase which occurred within the prison rules, and further accepted that one could never see into all cells on a wing at all times.

 

Evidence led on behalf of the defenders

[9]        Prison Officer James McLay had worked within the prison service since 1986 and had been in Edinburgh Prison from 1994.  He had been a residential officer for most of his career.  He worked in the south wing at Ingliston 1 at the time of the attack.  The night before the assault he had placed prisoner Damian Fowler on report, and during the day on 5 February 2012 he had been aware of Damian Fowler staring at him.  At about 2.30 pm on 5 February 2012 he overheard prisoner Francis Eadie saying “It’s not like Dalmar to piss someone off”.  Officer McLay then asked “What has he done now?”  The reply was “Nothing”.  Officer McLay proceeded elsewhere within the wing.  The remark by prisoner Eadie had been made in a joking manner. About ten minutes later officer McLay saw the pursuer lying on his bed within his cell (1/43) and said to him “Have you pissed someone off? or “You’ve been pissing someone off?”.  The pursuer did not seem to be aware of anything like this.  Officer McLay indicated that if the pursuer had any issues he should speak to him.  The pursuer did not do so.  He emphasised that the remark that he heard from prisoner Eadie was a sarcastic one and that the pursuer had given no evidence of being uncomfortable or aware of any difficulty nor had he returned to him with any further comment.  Officer McLay was quite clear that nothing had given him concern, and certainly not to the effect that Damian Fowler would proceed to attack the pursuer with a weapon.  The information which the witness had was to the effect that the pursuer had annoyed someone, rather than that he was going to be attacked.  The witness, who gave evidence in a reflective, frank and open manner, indicated that he would have dealt with the incident in the same way again.  He recalled that in 1987 he had been involved in an incident when a prisoner had been stabbed and killed and that this was an incident that he had thought about and reflected on ever since.  He recalled that at about 5.00 pm a prisoner, Henry Williamson, had passed a note to him which had indicated that earlier that afternoon prisoner Fowler had been sitting in his cell becoming agitated, and had indicated that he was going to target or stab officer McLay but had decided not to do that; and that after having dinner prisoner Fowler had indicated, according to the letter, that he wanted to get out of the hall and that he was going to “get Dalmar”, to whom he referred as “that black bastard”.  He recalled one additional factor in his assessment of the risk being that the pursuer had spent the afternoon in the same cell as Michael Nisbet and Damian Fowler.  He was the only witness to mention this matter, but recalled this in a transparent manner; indeed, as the officer present on the south wing who had interacted with Eadie and the pursuer that afternoon, it would have been quite reasonable for him to take this factor into account in determining that no risk arose, and therefore to retain this specific fact, upon which he was in his evidence quite insistent.  The witness accepted that in his statement to the police he had not mentioned the conversation about the pursuer “pissing someone off”; nor had he mentioned this matter in the internal report of 7 February 2012 by Mr Dougie Muir.  He frankly accepted the pursuer’s recollection of the conversation that the pursuer said that he had with Michael Nisbet and agreed that neither the pursuer nor Michael Nisbet would have had any opportunity after the assault to discuss such a conversation.  He further agreed that both versions given by each witness were in similar terms.  He accordingly accepted what the witness Michael Nisbet said that the pursuer said to him in Michael Nisbet’s cell before the attack.  Nevertheless, officer McLay’s position was that the pursuer was simply wrong in attributing the words that the pursuer did to himself.  He agreed with the pursuer’s counsel that this similarity between the pursuer’s account of what the witness said to him and Michael Nisbet’s account of what the pursuer reported to him was “a massive coincidence”, but he was adamant that he did not say to the pursuer that he was going to be attacked.

[10]      Prison Officer Aaron Stevens was officer McLay’s partner working on the south wing at Ingliston 1 on 5 February 2012.  He described officer McLay as probably one of the best officers that he had worked with.  He seemed to have no doubt that, had officer McLay had information that the pursuer was to be attacked, he would have “absolutely” acted upon it.  He expressly stated that officer McLay was a good judge of character and good at assessing matters in the hall.  He was very clear that he would trust officer McLay’s judgment on such matters.  He emphasised that one could not lock up every prisoner who had simply annoyed another prisoner.  With regard to the lines of sight within the wings, the witness advised that ninety nine times out of one hundred, one could see what one wanted to see, but that even when present within the section, views could be obscured.

[11]      Prison Officer Brian Armour had worked at HMP, Edinburgh for 24 years and had on 5 February 2012 worked as a residential officer in the west section.  He described officer McLay as “superb, conscientious and caring, with an attention to detail” and “fantastic with prisoners”.  He had no doubt that, had officer McLay had information of an attack upon a prisoner, he would have acted upon it.  When the attack on the pursuer happened the witness was just coming out of the central area office and had a clear unobstructed view down the wing from where he was.

[12]      Mr Ian Gunn, a former governor in four Scottish prisons, gave evidence as an expert for the defenders.  He had retired in December 2015.  The witness had a degree in social policy and criminology and a masters in the same subject.  He had also served in the Scottish Prison Service as Head of Operational Planning.  He had attended Ingliston 1 in February 2015 to interview staff about prisoners’ mail and had been in that hall before.  He confirmed that officers could observe prisoners within the sections from the desk area in the hall.  With regard to the level of supervision required, he emphasised that a balance required to be struck between allowing some association that is a regime with risk, and an austere regime.  The Prison Officers’ Association and governor determined the correct complement of staff, which in this case was five on the hall.  Even if officers were at their desk in the central area, in his view this still amounted to maintaining a presence in the hall.  He was quite clear that a staff presence in the section would not have prevented the assault, and that it was unlikely that a staff presence in the section would have reduced the risk of the assault.  There was certainly no rule that officers required to be on the section, he advised, and in the event of a weapon being concealed, it was unlikely that officers would have prevented a prisoner with such a weapon from going into other prisoners’ cells at a time of open association.  From his recent experience of visiting Ingliston 1 he recalled that there were good sight lines right to the end of the section in each of the south and west sections.  Further, from his recollection of his visit to the hall in February 2015, the witness recalled being in conversation with staff but noted that despite such conversation officers were maintaining a watch and being vigilant.  The witness was quite clear that, had a prison officer been advised of a threat of attack to the pursuer, he would have expected that officer to have taken action, broadly along the lines advanced on behalf of the pursuer.  Nevertheless, Mr Gunn, in respect of the pursuer’s account of what officer McLay said to him, observed as follows: “I would find it very difficult to believe that an officer would say what it is alleged that he said to the pursuer on that day.  It is not something an experienced prison officer would say”. The witness was here referring to the latter part of what the pursuer alleged officer McLay said to him, that is the section about going to sleep and suggesting that he lock his door.  Mr Gunn returned to this towards the end of cross-examination by the pursuer’s counsel, reflecting again that it was difficult for him to believe that an experienced officer would have made that remark in the face of a threat to a prisoner such as the pursuer, and that he would have expected the officer to have taken action. To take no action would be unacceptable, and would be a breach of duty by the officer on the basis that it would not represent an acceptable exercise of judgement.   Mr Gunn was clear that simply telling a prisoner to lock his own door was not an adequate discharge of that duty by an officer.

 

Submissions for the pursuer

[13]      The pursuer’s counsel advanced relatively brief oral submissions at the close of the proof, contending that there had been a breach of duty, by staff at the prison, for whom the defenders were responsible, to the pursuer in circumstances where an officer had known of the risk of an attack, told the pursuer of it, with a suggestion that he close his door, and that an attack had thereafter taken place.  She submitted that the matter turned entirely on the credibility of the pursuer and officer McLay.  She accepted that the pursuer’s account was not corroborated, but submitted that there was circumstantial evidence supporting his account to be found in the account given to police officers by Michael Nisbet at his interview at St Leonard’s Police Station in the early hours of 6 February 2012, when there had been no opportunity for Michael Nisbet and the pursuer to collude.  The pursuer and Michael Nisbet were consistent on the matter of the pursuer’s account of his conversation with officer McLay. The pursuer could not at the time of this conversation with Michael Nisbet have known that he was going to be attacked, and it could not have been in his contemplation at that time that he would later require to prove it.  The pursuer formed an impression that he was going to be attacked.  Officer McLay himself accepted that the accounts given by the pursuer and Mr Nisbet amounted to “a massive coincidence”.  This piece of evidence fitted with and supported the pursuer’s account that he was going to be attacked.  Counsel contrasted the pursuer’s credibility with that of officer McLay, submitting that he did not tell the police or Mr Muir certain matters in his later accounts to them.  In the event that the court preferred the pursuer’s account, his case amounted to this: nothing short of being locked in a cell would have sufficed to protect the pursuer, and accordingly the other duties averred relative to this issue as set out in article 6 simply fell away. 

[14]      In the event that the court preferred the account given by officer McLay of his conversation with the pursuer, the question still arose as to whether it was a breach of duty for officers not to be vigilant within the section by maintaining a continual presence at the time of the assault.  The pursuer’s counsel emphasised that her case was one based on the requirement that officers be present and vigilant within the section.  The presence of officers at the desk would only be sufficient if the officers were vigilant in watching the section.  The pursuer’s case went beyond that, however, as it was all about, she submitted, the visibility of officers to prisoners such as Damian Fowler.  She volunteered that this was a weaker part of the pursuer’s case.  Her position was that the attack by Damian Fowler was not racially motivated, and she noted that it had not been libelled as such in the indictment to which Damian Fowler in due course tendered a plea of guilty.  The account given by officer McLay of the content of the letter which he had seen from Henry Williamson to the effect that prisoner Fowler said that he was going to get “that black bastard” detracted from the credibility of officer McLay in this matter, in circumstances where police investigating the matter had not libelled the charge with a racial aggravation. 

[15]      On quantum, counsel took some time going through the various categories set out in the Judicial College Guidelines Section JC-54 (facial disfigurement), and submitted that the case fell within the middle ground of the bands for very severe scarring and less severe scarring, which bands give a substantial range running from £13,650 to £50,000.  In the circumstances of the present case, counsel submitted that an award in the region of £25,000-£30,000 should be made, with interest running on two-thirds of that sum to the past. 

[16]      Counsel sought decree in such a sum and moved for expenses in the event of success.   Additionally counsel moved that the court sanction the cause as suitable for the employment of junior counsel.  She reminded the court that she had been instructed in urgent circumstances to attend at the commission to take the evidence of the pursuer by video link from a detention centre in Lincolnshire.  The pursuer was at risk of deportation to Somalia.  Due to matters of credibility and reliability being so vital in the case, it was deemed appropriate that she be retained in the case.  In addition, the Scottish Legal Aid Board had sanctioned the employment of counsel in the action.  The case concerned issues of weapons and race.  Multiple productions were involved and issues arose which pertained to duties upon a professional person (a prison officer) in a position of public authority.  In all of these circumstances, it was appropriate that the court sanction the employment of counsel.  

 

Submissions for the defenders

[17]      Mr Higgins, for the defenders, helpfully tendered a written submission, which has been retained in process.  He agreed that matters turned on the credibility and reliability of the pursuer.  Notwithstanding the submissions of the pursuer’s counsel, the pursuer himself was in no doubt that the motive for the attack on him by Damian Fowler was a racial one, he argued.  He emphasised that it was for an officer to assess what was reasonable in terms of a dynamic risk assessment undertaken in developing circumstances and further what steps to take in the light of assessment.  There required to be a reasonable suspicion of a credible threat to justify the steps contended for on behalf of the pursuer.  Mr Higgins accepted, as officer McLay had done, that Michael Nisbet and the pursuer had indeed had the conversation that they said they did in Michael Nisbet’s cell shortly prior to the attack, but emphasised that, in his submission, this was not indicative of officer McLay actually having told the pursuer of any threat of attack.  The pursuer could simply be lying or he could instead have misunderstood the comments made by officer McLay.  Officer McLay was an experienced officer, commended by colleagues, who was the only person in the circumstances in position to make an analysis of risk.  It was clear from the evidence of officer McLay that the comment that he had heard from prisoner Francis Eadie had caused him no concern, and the reaction of the pursuer to his own comments had confirmed that.

[18]      With regard to the duty that there be a “continual presence” of staff on the wing, the content of that alleged duty was unclear and it was apparent from the evidence of officers and experts that a mere presence on the wing was not a deterrent to an attacker such as Damian Fowler in the circumstances which applied in this case.  Officers were present at the desk, and cell 1/40 was closer to the desk than it was to the furthermost part of the section.  There was no question that Damian Fowler would have gone undetected following this incident.  The agreed footage captured his movements and he had tendered a plea of guilty and made the remarks to prison officers as agreed between the parties and set out in the findings in fact, above.  The assault was simply not foreseeable and accordingly not negligent.  Both experts had described something approaching a dynamic risk assessment by the officer on the spot, and with regard to this element of discretion Mr Higgins referred the court to the following authorities:  Whannel v Secretary of State for Scotland 1989 SLT 671; Leslie v Secretary of State for Scotland 1999 Rep LR 39; and McKeown v The Lord Advocate, Lady Paton, 22 January 2001 (unreported).

[19]      Turning to quantum, Mr Higgins accepted that the pursuer had sustained a serious physical injury.  There was nothing to support any psychological injury, however. Mr Higgins submitted that any award of solatium required to be in the band of £12,000-£16,000.  He agreed with Ms Forbes that interest should fall on two-thirds of that sum to the past.

[20]      Mr Higgins concluded his submissions by inviting the court to pronounce decree of absolvitor.  He further sought expenses in the event of success and opposed the motion for sanction for counsel in terms of section 108 of the Courts Reform (Scotland) Act 2014.  He submitted that the case was not sufficiently difficult or complex to merit sanction.  The record was short and the case straightforward.  While the matter was clearly important to the pursuer, any claim such as this involving an injury of this nature would of course be important to any pursuer.  Notwithstanding that, there were no special circumstances and the value of the claim was not high, even on the pursuer’s contentions. 

 

Discussion and Decision

Liability

[21]      The case advanced for the pursuer on the basis of the alleged intelligence of an attack on the pursuer being within the possession of officer McLay undoubtedly presents a crisp issue of credibility and reliability and boils down to this:  did officer McLay say what the pursuer said he did to him in his conversation with the pursuer in the early afternoon of 5 February 2012 in the pursuer’s cell in Ingliston 1, south wing?

[22]      I formed a favourable view of the pursuer’s credibility as he gave evidence in the course of two days on commission in particularly difficult circumstances for him at the end of a link in a detention centre in Lincolnshire when he was at risk of imminent departure to Somalia.  His report to Michael Nisbet in Michael Nisbet’s cell thereafter during the dinner period between 3.45 pm and 4.00 pm was supported by Michael Nisbet in his evidence and fully accepted by officer McLay and indeed by Mr Higgins on behalf of the defenders in submissions.  On the other hand, officer McLay gave evidence of a contrary account in a similarly credible and transparent manner.  The question for the court then, of course, becomes whether the pursuer has proved that the remarks attributed by him to officer McLay were indeed made by that officer to the effect that there was a threat of attack and that the pursuer should simply close his door. 

[23]      I have concluded after careful consideration of the evidence that the pursuer heard the words contended for by officer McLay in officer McLay’s evidence, but formed a wrong impression of their import.  The pursuer then conveyed that wrong impression to Michael Nisbet.  I have come to this view for the following reasons. 

[24]      First, I considered that officer McLay gave evidence in an open and wholly non-defensive manner.  He had clearly reflected on the evidence that he was to give before he came to court, and at the end of his evidence in chief volunteered a reference to the 1987 fatal incident referred to within my narrative of his evidence.  Specifically, within that passage he indicated that he considered it “abhorrent” to suggest that he would let anyone harm a prisoner.  It was clear that he had ruminated on the 1987 incident throughout his career.  That chimed with the praise heaped upon him by his colleagues as an officer with the complete set of skills required to carry out his duties in a fully professional manner.  He recalled specifically that the pursuer had spent time during the afternoon recreation period in the same cell as Michael Nisbet, and although no one else mentioned this small adminicle of evidence, I have accepted officer McLay’s account of it as a factor which he took into his assessment of risk, as he expressly said he did. 

[25]      Second, the support given to officer McLay by colleagues provides the context for consideration of Mr Gunn’s expert evidence.  Mr Gunn was quite clear that he would have expected an officer to have taken action, in the event that the pursuer’s account was accurate.  Nevertheless, however, at two points in Mr Gunn’s evidence he expressed his reluctance to believe that an experienced officer such as officer McLay would have simply indicated, in the context of a threat to a prisoner, that a prisoner should simply close or lock his door.  Such a comment simply does not fit with my own impression of officer McLay as I observed him giving evidence and as he was described by his colleagues, and for that reason, together with my said assessment of him as a witness, I find his evidence on this matter to be both credible and reliable.  Accordingly, on the facts, the principal branch of the pursuer’s case fails.

[26]      Mr Gunn’s evidence was further determinative of the second branch of the pursuer’s case of fault.  Mr Gunn recalled being in the Ingliston 1 Hall in February 2015 talking to staff who, notwithstanding his conversation with them, maintained a state of watchfulness and vigilance.   He was quite clear that the presence of staff at the desk area was a sufficient presence in the hall to obtemper the duty contended for on behalf of the pursuer, as he interpreted it.  There was a correct complement of staff on duty, and a presence had duly been maintained throughout.  It was clear from his visit in February 2015 to the hall that officers at the desk could observe prisoners within the section.  There was evidence from the other officers about the configuration of the hall and the lines of sight (officers Jamieson and Stevens in particular).  Any weapon on a potential assailant would be concealed and accordingly officers would not have seen Damian Fowler with any weapon and would not have stopped him going into any cell.  In these circumstances a staff presence on the section would, in Mr Gunn’s opinion, be unlikely to have reduced the risk of, and indeed would not have prevented, the assault.  Mr McCaig accepted that any weapon would be likely to be concealed and that officers, even had they been present in the section, may not have seen such a weapon.  If the weapon had been concealed by Damian Fowler, Mr McCaig accepted that officers would not have stopped him going into Michael Nisbet’s cell.  In these circumstances, I conclude that it cannot be said that there has been any breach of duty on the part of officers.  It was clear to me, as I heard the evidence, that the officers in Ingliston 1 Hall operated a regime which was vigilant and humane, where privacy of prisoners was respected, but which remained nevertheless necessarily a regime with intrinsic risk which required to be managed.  In circumstances where prisoners were in open association and where one prisoner crossed from one cell to another with a concealed weapon, both experts were in the end crystal clear that no officer, even if present within the wing and in close proximity, would have done anything to stop that prisoner crossing into the other prisoner’s cell.  This branch of the case accordingly fails on the merits and causation. 

 

Quantum

[27]      I did not consider any of the authorities referred to be of particular assistance in determining the level of solatium in this case.  In considering the Judicial College Guidelines broadly, however, I assess the injuries as falling in the lower section of very severe scarring at JC-54.  Accordingly, had I been making any award I would have assessed solatium in the sum of £25,000, and by agreement of Miss Forbes and Mr Higgins, would have apportioned two-thirds thereof to the past.  The injuries sustained by the pursuer were significant including, in particular, substantial blood loss and major scarring.  I further accepted in full the pursuer’s own evidence about ongoing infrequent nightmares and migraines together with his brief reference to discomfort in hot conditions. 

 

Disposal

[28]      In all of these circumstances, I have pronounced decree of absolvitor.  I have appointed a hearing on expenses, although both parties moved for the expenses of the action in the event of success, on the basis that as the pursuer has legal aid, issues may arise requiring any interlocutor on expenses to reflect that position.  Neither party moved that I certify their expert witnesses but I record for the avoidance of doubt that I considered both Mr McCaig and Mr Gunn to be undoubted experts in their fields and would have no difficulty in certifying both of them in that capacity if so moved.  I also had no difficulty in sanctioning the cause for the employment of junior counsel, and the interlocutor pronounced today reflects that.  In the particular circumstances of the pursuer, who gave evidence on commission over two days from a detention centre with the risk of imminent deportation in the background, and standing the issues of fault arising in the case, I consider that the test set out in section 108 of the 2014 Act has been duly satisfied.  There was sufficient complexity and importance involved, in particular importance to the pursuer and indeed to officer McLay, to render this action as an entirely suitable one for the employment of junior counsel. 

[29]      In closing these remarks, I would like to thank Miss Forbes, Advocate, and Mr Higgins, Solicitor for their highly professional and diligent conduct of this litigation.