Morgan & Anor v Ministry of Justice & Anor

A Crown defendant’s liability in tort is confined by Crown Proceedings Act 1947, s.2. The Act does not permit creation of a new direct, non-delegable duty of care owed by the Crown for medical services supplied by non-Crown bodies. The Crown may be a public authority under Human Rights Act 1998, s.6, but the Act creates domestic rights against specific public authorities, not against the State as an indivisible entity. The Crown cannot therefore be sued under ss.6–8 for the acts or omissions of other public authorities. The victim test under s.7 is broad and fact-sensitive in Article 2 cases. A fiancée may qualify, while the position of a partner or non-biological child depends on the nature of the relationship and the evidence.

The claim arose from the suicide of an 18-year-old prisoner at a young offender institution. The claimants brought negligence and human-rights claims concerning alleged failures by prison healthcare providers and other bodies. The court was directed to determine three preliminary issues: whether the Ministry of Justice, the Secretary of State or the prison governor owed a direct non-delegable duty of care for doctors’ acts and omissions; whether the Crown could be liable under the Human Rights Act 1998 for acts of other public authorities; and whether the claimants could satisfy the statutory victim requirement.

1. Non-delegable duty. The proposed duty was not an extension of existing law but an attempt to create new common-law liability against the Crown. Under Crown Proceedings Act 1947, s.2, Crown liability is substantially confined to vicarious liability and the specified categories of primary liability. The proposed duty did not fall within those categories. The statutory scheme also indicated an intention to exclude liability for non-Crown bodies. The First Defendant, the Secretary of State and the governor therefore owed no direct non-delegable duty in respect of the doctors’ functions.
2. The alleged analogy with schools, hospitals and employment did not justify the proposed duty. Following the transfer of prison healthcare to the NHS, the defendants lacked the requisite control over the doctors’ provision of medical services. Their duty was to provide access to primary healthcare, and no failure to provide access was alleged. The Convention’s protective obligation under Article 2 did not require the common law to adopt a non-delegable duty.
3. Human Rights Act liability. The Crown was capable of being a public authority under s.6(1), but the domestic statutory scheme differed from the Convention’s international law of State responsibility. Sections 6–8 imposed liability on the relevant public authority for its own unlawful conduct. Section 3 could not be used to rewrite s.7 so as to make the Crown a general representative of the State. The Crown could not therefore be sued for the acts or omissions of the doctors, probation officers or other non-Crown bodies identified in the claim.
4. Victim status. The court rejected the proposed rigid distinction between substantive and procedural Article 2 claims. The Strasbourg authorities supported a broad, fact-sensitive inquiry into whether the relationship with the deceased was such that the applicant had suffered gravely and was personally concerned by the violation. A fiancée was capable of qualifying. A person merely in a relationship with the deceased required assessment of the relationship’s nature and length. A biological daughter was capable of qualifying; the position of a child treated as the deceased’s daughter but not biologically related remained fact-sensitive and could not finally be determined on the evidence.