Angela Carr v G4S Care and Justice Services (UK) Limited

On a strike-out or summary-judgment application, the court asks whether the claim has a real, rather than fanciful, prospect of success. It must avoid conducting a mini-trial and should consider evidence reasonably expected to be available at trial.

A private contractor operating a prison may arguably be a public authority under section 6(3) of the Human Rights Act 1998 and may owe obligations arising from the Article 2 general duty. That duty can extend to practical measures designed to reduce the availability and use of drugs posing a substantial risk to life. The stringent operational duty requires a real and immediate risk to life, knowledge or constructive knowledge of that risk, and a failure to take reasonable measures within the authority’s powers.

The claimant brought an Article 2 claim arising from the death of her son, who died in custody at HMP Birmingham after using a synthetic cannabinoid. The defendant was the private contractor responsible for operating the prison.

The defendant applied to strike out the claim or obtain summary judgment. The claim alleged breaches of both the Article 2 general duty, including failures to reduce the ingress and use of illicit drugs, and the operational duty arising from an alleged real and immediate risk to the deceased’s life.

The issues were whether the claim was properly brought against the contractor, whether the pleaded matters could amount to breaches of the general duty, whether there was a real prospect of establishing causation, and whether the operational-duty claim could be distinguished from Luke.

1. The applications for strike out and summary judgment were dismissed. The court applied the principles summarised in Luke, including the requirement for a real prospect of success, the prohibition on conducting a mini-trial, and the need to consider further evidence reasonably expected at trial.

2. The claimant had a real prospect of showing that the defendant was a public authority for the purposes of section 6(3) of the Human Rights Act 1998. The possibility that a claim might also lie against the Secretary of State did not prevent a claim against the contractor. The claimant also had a real prospect of showing that section 6 contained no carve-out excluding the Article 2 general duty or prison operation from the functions performed by a private contractor.

3. The court declined to import the common-law approach to non-delegable duties in Woodland and GB into the distinct statutory scheme of the Human Rights Act. The contractual allocation of responsibility remained fact-sensitive and could not be resolved on the incomplete evidence available.

4. The pleaded failures were capable in principle of falling within the Article 2 general duty. That duty may include practical, general measures to preserve the lives of prisoners, including anti-drug measures, where the drugs posed a risk of death and there was an evidential basis for knowledge of that risk. The adequacy of drug strategies, mail controls, scanning, plumbing safeguards, staff enforcement and CCTV required fuller factual investigation.

5. The claimant had a real prospect of satisfying the causation test identified in Daniel: whether reasonably available measures could have had a real prospect or substantial chance of altering the outcome. The court also considered that she had a real prospect of establishing that causation was not a necessary element of the claim for declaratory relief, although it might affect damages.

6. The operational duty remained subject to a stringent threshold. It required a real and immediate risk to life, known or which ought to have been known by the authority, and a failure to take measures within its powers which, judged reasonably, might have been expected to avoid the risk.

7. The claim was realistically distinguishable from Luke. Here there was evidence capable of showing that synthetic cannabinoids posed a risk of death known to the defendant, together with more specific evidence concerning the deceased’s recent use of those substances and the alleged knowledge of that use within the prison.

The judgment concerned a first-instance application transferred from the County Court to the High Court. The defendant’s applications for strike out and summary judgment were dismissed.