G4S Care and Justice Services Ltd v Luke

The Article 2 operational duty may potentially extend to new categories of vulnerable persons, including prisoners exposed to risks arising from drugs obtained in prison. Whether it applies is fact-sensitive and should not ordinarily be resolved summarily on a broad legal assumption.

However, the Osman test requires a stringent, real and immediate risk to life, not merely a risk of harm. General availability of drugs, or a prisoner’s history of drug addiction, does not by itself establish an individualised risk. There must be a realistic evidential basis for showing that the authority knew or ought to have known of the relevant risk at the time.

G4S appealed against the decision of His Honour Judge Worster in the Birmingham County Court, which dismissed its application to strike out or obtain summary judgment on Dawn Luke’s claim under Article 2 of the European Convention on Human Rights.

Mr Luke’s son, a serving prisoner at HMP Birmingham, died from mixed drug toxicity after ingesting prescribed and illicit substances. The claim alleged that G4S had failed to protect him from the risks posed by illicit drugs in the prison. The appeal concerned whether the pleaded and evidential case could establish a real and immediate risk to his life of which G4S knew or ought to have known.

The appeal was allowed and summary judgment was entered for G4S.

1. The appellate question was whether the lower court’s conclusion was wrong under CPR r 52.21(3). It was not merely a discretionary case-management decision requiring substantial deference.

2. The categories of persons to whom the Article 2 operational duty may apply are not closed. The Strasbourg jurisprudence develops incrementally and the existence of the duty depends on the type of risk and the individual’s vulnerability. The court therefore assumed, without deciding, that the duty could in principle extend to a prisoner facing a risk caused by voluntary ingestion of drugs illicitly obtained in prison.

3. The Osman test remains stringent. The risk must be a real and immediate risk to life, rather than a general risk of harm. The authority’s knowledge must be assessed without hindsight and must concern what it knew or ought to have known at the relevant time. If the risk exists, the required protective measures are judged by reasonableness, including the circumstances, the ease or difficulty of precautions and available resources.

4. The evidence that drugs were readily available on the prison wing, that some prisoners misused Buscopan and Black Mamba, and that staff had witnessed unpleasant effects did not establish a realistic prospect of proving a real risk of death. The evidence concerning the interaction of the drugs was uncertain. The pattern of prison deaths did not put G4S on notice of a specific risk of death from those substances.

5. Nor did the evidence establish a real and immediate risk to Mr Boland personally. The availability of drugs and his history of addiction were insufficient. The evidence available to G4S indicated that he was engaging with treatment, had passed five of six drug tests, had stated that he was drug-free, and had shown no identified risk of medication abuse, self-harm or suicide. There was no evidence that G4S knew or ought to have known that he was abusing the drugs said to create the risk.

6. The fresh evidence concerning continuing drug problems at the prison did not alter the conclusion. The claimant therefore had no realistic prospect of establishing the Article 2 threshold.

• High Court (Queen’s Bench Division): appeal from the Birmingham County Court allowed; the lower court’s refusal to strike out or grant summary judgment was reversed, and summary judgment was entered for G4S.
• Birmingham County Court: His Honour Judge Worster dismissed G4S’s applications for strike-out and summary judgment on 23 March 2018.