G4S owed a duty under Article 2 to prevent ingress of drugs into HMP Birmingham

In Carr v G4S Care and Justice Services (UK) Ltd [2022] EWHC 3003 (KB) Mrs Justice Henrietta Hill DBE dismissed an application by G4S for strike out and summary judgment in which it argued that it could not, as a private contractor, owe a general duty under Article 2 to have adequate systems in place to limit the ingress of dangerous drugs into HMP Birmingham.

The claim is brought by the mother of Andrew Carr who died in HMP Birmingham on 29 March 2018 having consumed a synthetic cannabinoid.  His death came during a period in which healthcare services at HMP Birmingham, then operated by G4S, had been called to 311 incidents over six months involving prisoners in difficulty having consumed drugs.  In August 2018 the MoJ took over the running of the prison after the HM Inspector of Prisons issued an ‘urgent notification’ having reported that:

Our own observations confirmed to us that the use and trafficking of illegal substances was blatant. I have inspected many prisons where drugs are a problem, but nowhere else have I felt physically affected by the drugs in the atmosphere - an atmosphere in which it is clearly unsafe for prison staff to live and work. In light of this, it was shocking that many staff did not seem to be prepared to tackle the drugs misuse. When inspectors at one point raised the fact that drugs were clearly being smoked on the wing, the response from staff was to shrug.

G4S had argued that the alleged breaches of the general duty to have adequate systems in place for the preservation of the life of prisoners was the responsibility of the state rather than it as a private contractor.

Hill J accepted the Claimant’s argument that the responsibilities for complying with the general duty would inevitably be shared between the Secretary of State and the contractor: the former would likely remain responsible for matters of law, policy, and funding, with the latter responsible for many aspects of the implementation of general measures, under contractual arrangements.  However where an aspect of the general duty has been contracted to the private contractor, there is no reason why a claim in respect of the violation should only be aimed at the state, and not at the private contractor: that is the effect of s.6(3)(b) of the Human Rights Act 1998 which places the obligations of the Act upon any body whose functions are of a public nature.

The judgment is available here.

The Claimant was represented by Sam Jacobs of Doughty Street Chambers, and Carolynn Gallwey of Bhatt Murphy Solicitors.