HMP Barlinnie officer fails to establish negligence by Scottish Ministers after incident with high dependency prisoner

About this case:

• Citation:
  [2022] SC GLW 16
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Stuart Reid

Alexander Gemmell, who had worked as a prison officer since 1991, alleged that his employers, the Scottish Ministers, owed him specific duties in the exercise of reasonable care and ought not to have allowed for a female colleague of his to have been left alone with the prisoner.

The case was heard by Sheriff Stuart Reid in Glasgow Sheriff Court. Mr A Gillies appeared for the pursuer and Mr R Fairweather for the defenders.

Broke free of hold

On 7 December 2014, the pursuer was working in the prison’s Admissions Unit located adjacent to the High Dependency Unit. A number of prisoners in the HDU were due to attend church that morning, for which their name had to be put down on a list of permitted attendees. A prisoner, DD, who was not on that list, attempted to walk past an officer on duty in the HDU, Lucy Ridgeway, but was stopped. Ms Ridgeway was concerned that DD was at risk of becoming involved in a disorderly incident if he attended church.

After refusing to return to his cell, DD became abusive towards Ms Ridgeway. Another officer, Stuart Walker, noticed this and asked the pursuer for assistance. After DD refused to comply with their instructions, the pursuer and Mr Walker began to guide him towards the staircase leading to his cell using a “come along” hold. Halfway up the stairs, DD broke free of the hold and punched Ms Ridgeway in the face. It was the pursuer’s case that he was also injured during this incident.

Counsel for the pursuer submitted that the defenders ought to have been aware of DD’s ongoing mental health problems and taken reasonable steps to minimise the danger DD presented to him and his colleagues. Further, Ms Ridgeway ought not to have been left alone with DD as he had previously exposed himself to female officers within the prison and a Risk and Conditions marker had been in place stating that interactions between female staff and prisoners should be reduced.

Virtually unassailable

In his decision, Sheriff Reid observed that the expert evidence led by the defenders effectively “torpedoed” the pursuer’s case, saying: “The testimony of the defenders’ expert witness, Phillip Wheatley, was formidable. It was acutely pertinent, it had the attraction of irresistible logic, and it carried with it an authority and gravitas that derived from the witness’s remarkable depth of experience in the operation of prisons, the management of prisoners, and the training of prison officers. Despite the commendable efforts of the pursuer’s agent to challenge his testimony in cross-examination, this body of expert evidence was virtually unassailable.”

On the risk posed by DD, he said: “DD was the subject of continual assessment throughout his period in custody with the defenders. To the extent that his behaviour posed a risk to prison officers, the medical records (evidencing continuing assessment and review) support the conclusion that this risk was being managed and controlled appropriately. Specifically, it was precisely due to his mental health problems that the defenders took the decision to transfer DD to a cell in the HDU.”

He continued: “The defenders discharged their duty to assess the risks which this prisoner posed, not only to others, but to himself. There was no evidence to support the conclusion that there was a specific risk of violence to prison officers, still less a risk of a magnitude that was any greater than the risk posed by the many other prisoners then detained within HMP Barlinnie.”

Unworkable duty

Addressing whether the accident had been caused by DD being left alone with Ms Ridgeway, Sheriff Reid said: “True, DD had exposed himself to Ms Ridgeway and to another female member staff, and Ms Ridgeway had reported this to her first line manager, who, on 29 November 2014, had applied a Risk and Conditions marker to DD’s record. But it is plain from that entry that the risk identified here was the risk of the prisoner exposing himself to female officers. Neither the marker, nor the report from Ms Ridgeway, identified the prisoner as presenting a risk of violence towards female officers.”

He went on to say: “The alleged duty is, in its nebulous terms, quite unworkable, short of (i) constantly having Ms Ridgeway accompanied by a male colleague or (ii) preventing her working on the HDU at all merely because of her gender. Both of those propositions would be untenable, anachronistic, and unwarranted. In fairness to the pursuer, neither such extreme proposition was advanced by him - but nor was any alternative practicable proposition advanced by him.”

Sheriff Reid concluded: “Based upon the credible and reliable testimony accepted by me, the defenders discharged such duties as were incumbent upon them at common law. The specific duties of care posited by the pursuer far exceed what is reasonable or warranted on the evidence. As the pursuer has failed to establish any fault on the part of the defenders, or that the pursuer’s injuries and losses were caused by any fault on the part of the defenders, the pursuer’s claim fails.”

Decree of absolvitor was therefore pronounced in favour of the defenders.