North of the border: Fallout from a prisoner’s leave

She alleged 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 on short term leave if such prisoners presented a real and immediate risk of danger”.

The deceased knew Campbell. The claimant argued, as she was part of a group likely to “have dealings” with him, she was an identifiable individual to whom a duty was owed. She also maintained that the SPS acted contrary to Article 2 of the European Convention on Human Rights by failing to protect life.

The Article 2 claim was immediately rejected. There was a public policy need to avoid imposing impossible or disproportionate burdens on public authorities: “A pursuer must establish a real and immediate risk to the life of an identified individual.”

The claim in negligence also failed. The claimant had not established that the deceased had a “special relationship” exposing her to particular risk or “a special or distinct risk” arising from the actions of the SPS.

There were no facts alleged “upon which it could be inferred that the SPS ought to have considered that: (a) any person was at immediate risk of harm from Campbell beyond the general risk which, as a habitual criminal, he posed to the general public ...or (b) the deceased, or a class of person, would be a particular target of his violence”.

The court held consideration of principles of fairness, justice and reasonableness would have produced the same decision. The imposition of liability “on such a tenuous basis” could have serious consequences for the proper functioning of the SPS, potentially exposing it to claims from any person who became a victim of a prisoner released before the end of his sentence.

It could be equally tenuous to hold an employer vicariously liable for an employee who murders a colleague. In Viackuviene v Sainsbury, the court at first instance refused to strike out such a claim. Fortunately, on appeal the case was dismissed: the murderer’s actions were not sufficiently closely connected to his employment to give rise to vicarious liability.

Nicola Brown
Associate, Simpson & Marwick

This article was published in the 18 July 2013 edition of Post