PATRICIA DEVALL & Anor v MINISTRY OF JUSTICE

Article 2 operational duties remain an evolving area. A claim should not be struck out where the pleaded facts arguably establish that a public authority assumed responsibility for an individual’s welfare and safety, that the responsibility extended to the type of harm alleged, and that the authority knew or ought to have known of a real and immediate risk to life. Residence in approved premises, the absence of physical restraint, curfew timing, NHS medical arrangements and the possibility that the case involved ordinary negligence do not necessarily defeat the claim at an interlocutory stage. The systemic and operational duties may overlap, so an arguable operational claim can justify allowing the systemic claim to proceed. An Article 8 claim based on the same facts should likewise proceed where the Article 2 claim has real prospects of success.

The Ministry of Justice appealed from HH Judge Freeland QC’s refusal to strike out or summarily dismiss claims brought by the administrators of Billy Rye’s estate and by his mother in her own right. Mr Rye died at approved premises operated by the National Probation Service after staff allegedly failed to obtain emergency medical assistance despite repeated unsuccessful attempts to rouse him.

The claims alleged breaches of systemic and operational duties under Article 2 ECHR and breaches of Article 8 ECHR. The central issues were whether the pleaded facts disclosed an arguable assumption of responsibility, a real and immediate risk to life known or discoverable by the Defendant, and arguable breaches suitable for determination at trial.

1. Appeal dismissed. The claims under Articles 2 and 8 ECHR were not struck out or summarily dismissed.
2. Article 2 jurisprudence remains evolutionary. The court should exercise considerable caution before disposing summarily of claims in this developing field, particularly where the available pleadings and documents may not contain all evidence relevant to the issues.
3. The pleaded case had a real prospect of establishing that the requirement to reside in approved premises involved sufficient State control to support an assumption of responsibility for Mr Rye’s welfare. It was also properly arguable that the scope of that responsibility extended to protection from self-harm and drug abuse. The absence of physical restraint, residence outside paradigm detention settings, the timing of the events outside curfew hours, Regulation 11 of the Offender Management Act 2007 (Approved Premises) Regulations SI 2014/1198, and the availability of NHS treatment did not necessarily defeat the claim.
4. The allegations that Mr Rye was recently released from prison, had a history of drug use, and remained unresponsive after successive attempts to rouse him were sufficient to meet the threshold for trial on whether there was a real and immediate risk to life of which the Defendant knew or ought to have known.
5. The court declined to determine summarily whether the facts amounted to mere negligence, an ordinary rather than exceptional risk, or circumstances outside the very exceptional categories discussed in Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28. Those issues required full evidence and argument. The possible overlap between systemic and operational duties meant that the systemic-duty claim should proceed as well.
6. Although an Article 8 claim based on the same facts would rarely succeed where Article 2 failed, that consideration did not justify striking it out while the Article 2 claim retained real prospects of success.
7. The Judge below had not found that Mr Rye was in State custody. He had correctly rejected the Defendant’s bald submission that the claim necessarily failed because approved premises were not a prison.

1. High Court (Queen’s Bench Division): appeal dismissed. Mr Justice Soole upheld HH Judge Freeland QC’s refusal to strike out or summarily dismiss the claims.
2. Decision under appeal: HH Judge Freeland QC refused the Defendant’s applications under CPR 3.4(2)(a) and CPR 24.2.