Prisoner’s damages claim for ‘wrongful revocation’ of home detention curfew licence dismissed

John Paton raised an action for damages for the “wrongful revocation” of his home detention curfew licence.

A sheriff had granted a proof before answer, but the Sheriff Appeal Court upheld an appeal by the Scottish Ministers, on behalf of the Scottish Prison Service, and dismissed the action.

‘Home detention curfew’

Sheriff Principal Duncan Murray, sitting with Appeal Sheriff Nikola Stewart and Appeal Sheriff Nigel Ross, heard that the respondent was sentenced to nine months’ imprisonment after being convicted at Glasgow Sheriff Court in January 2015, which resulted in an earliest release date of 14 May 2015.

The respondent thereafter applied for release on Home Detention Curfew Licence (HDCL) and he was released on HDCL on 24 March 2015, subject to certain conditions.

But on 28 April 2015, G4S recorded a breach of the licence conditions after the respondent was arrested by police and taken from his restriction address.

However, the offence for which the respondent was arrested by the police had been committed in September 2014, prior to the imposition of the HDCL conditions on which he was released.

On 29 April 2015, the governor of HMP Barlinnie revoked the respondent’s HDCL and he was returned to custody on 29 April 2015. 

The respondent made representations challenging his recall on the grounds that he had not committed any new offence while on HDCL, and his case was referred to the Parole Board.

He was, in any event, liberated on 14 May 2015, which was his earliest release date, and the Parole Board on 1 December 2015 ultimately upheld the respondent’s appeal and directed the appellants to cancel the revocation of the respondent’s HDCL, albeit the decision was academic.

‘Wrongful revocation’

But the respondent raised the present action, claiming damages for the wrongful revocation of the HDCL, which had caused him to spend 14 days in custody.

The matter called before the sheriff for a debate, where one of the preliminary issues was whether in exercising the functions under section 17A of the Prisoners and Criminal Proceedings (Scotland) Act 1993 for the recall of prisoners, the appellants were subject to a “common law duty of care”, breach of which could support a claim by a prisoner for damages.

The sheriff allowed a proof, but the appellants challenged the decision, arguing that no common law duty could arise in the circumstances.

As a short-term prisoner, the respondent was entitled to be released unconditionally having served one half of his sentence on 14 May 2015 by virtue of section 1 of the 1993 Act. 

Section 3AA of the 1993 Act makes provision for certain prisoners to serve part of their sentence at home, but this is at the discretion of the Scottish Ministers and is for that reason to be distinguished from a short term prisoner’s entitlement to be released at the halfway point in terms of section 1(1) of the 1993 Act.

The sheriff “erred” in his approach by taking as a starting point the tripartite test for imposing a duty of care set out in Caparo Industries plc v Dickman 1990 2 AC 605, namely (i) that harm was reasonably foreseeable; (ii) that there was a relationship of proximity; and (iii) that it is fair, just and reasonable to impose a duty of care.

Rather, he should have first considered whether or not in the circumstances of this case a common law duty of care arose in the context of the statutory function to recall a prisoner released under HDCL.

In the ordinary case, a breach of statutory duty does not by itself give rise to any private law right.

The proper question for the sheriff and the appeal court was whether a duty of care arose when the appellants were exercising the statutory function imposed by section 17A of the 1993 Act, where it was accepted that there was no breach of statutory duty. 

The respondent had failed to plead a relevant case as there was no specification of the particular breach which was said to have occurred, it was submitted.

‘Bound to fail’

Delivering the opinion of the court, Sheriff Principal Murray said: “It can be accepted that section 17A relates to a limited class of the public: those who might be recalled from HDCL. The terms of section 17A do not demonstrate the Parliament intended to create a private right of action for a failure in the exercise of the discretion to recall. The section imposes a wide discretion in making the decision, and there is nothing to bring the section close to conferring a specific right. Further, section 17A(2)(b) provides a power of review, even if such a power of review may be of limited benefit.

“Accordingly the power conferred by section 17A and a claim for damages arising from a recall to detention is not justiciable and the appellants succeed in the appeal. The sheriff fell into error in applying the Caparo test to the instant case. He should have identified that this is a claim founded in the exercise of the statutory discretion conferred by section 17A to which the tripartite test has no application.”

The court also held that the respondents’ pleadings did not give “fair notice” to the appellants of the case being made against them.

He added: “Accordingly we do not agree with the sheriff that by taking the respondent’s pleadings at their highest the case should have been admitted to a proof before answer. Even taking the pleadings at their highest we find that the respondent was bound to fail. 

“The sheriff failed to identify the deficiencies in the respondent’s pleadings and in doing so was also in error in not upholding the appellants’ first plea in law on that basis.”

Dismissing the respondent’s claim, the appeal sheriffs observed that the recall may not have arisen had SPS made enquiries as to whether there were any outstanding warrants prior to the respondent being released on HDCL. 

The court stated: “This appears an obvious step and we would recommend that a review is undertaken of the process for release on HDCL to identity any outstanding warrants prior to release. We also note that this was the second occasion when the respondent was arrested while on HDCL. 

“It is surprising that the police did not establish that there was a second outstanding warrant which emanated from Glasgow Sheriff Court when the respondent was first detained on 31 March 2015. It may be that Police Scotland too could usefully review their practice to identify where multiple warrants are outstanding.”