Private prison operators may have liability under Article 2

The decision in Carr v G4S has potential implications for private contractors operating in the prison setting. The ruling suggests that Article 2 of the Human Rights Act 1998 may well apply to private contractors who are performing public functions on behalf of the state. 

Whilst prison operators are of course already mindful of the need to minimise risks posing a substantial risk to life (and indeed to take reasonable measures in respect of all risks of injury), they will need to consider how they might be affected by this additional potential avenue for claims. 

Facts

Andrew Carr died at HMP Birmingham in March 2019, after using a synthetic cannabinoid. HMP Birmingham was operated by G4S Care and Justice Systems (UK) Ltd. 

In the year preceding Mr Carr’s death, HMIP had conducted an unannounced inspection at HMP Birmingham, leading to invocation of the ‘Urgent Notification’ process, on 16 August 2022. This was due to concerns about drug use in the prison and the way in which the prison was being operated, and ultimately management of the prison was taken over by HM Prison and Probation Service. 

The serious concerns in regard to the management of drugs at HMP Birmingham was reiterated in the jury’s  narrative verdict at Mr Carr’s inquest, which included the observation that, “Through the evidence we have gathered it is apparent that there has been no action taken to reduce the risks of using the plumbing system to send and receive drugs”.

In a subsequent claim brought by Mr Carr’s mother, it was alleged that the Defendant had breached the ‘general duty’ and ‘operational duty’ arising under Article 2 of the HRA 1998, the right to life.  G4S argued that a breach of the ‘general duty’ under Article 2 could not be alleged against a private contractor and made an application for summary judgment and/or to strike out the claim.

Decision

In dismissing the application, Mrs Justice Hill DBE concluded that there was at least an arguable case that the ‘general duty’ under Article 2 could lie with G4S, as well as with the Secretary of State.  Developing that point, she determined Mrs Carr had a real prospect of showing that operating a prison could be classed as a public function for the purposes of section 6(3) of the HRA 1998. Hence, she stated there was also a real prospect at trial that the Claimant could succeed with the argument that the ‘general duty’ could be delegated to private contractors.

Comment

This issue will require determination at a full trial, and for now has been assessed only against a very low standard, at a preliminary application. However, it serves as a warning for the general direction of travel.

Given the obligations that exist independently of Article 2, it seems unlikely that additional operational measures will be indicated even if this decision is carried through into a final judgment. However, it is entirely possible that contractual or insurance related issues will need to be addressed.

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