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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> JR v Secretary of State for Justice (duty of care : probation service : persons on parole) [2016] EW Misc B8 (CC) (11 March 2016) URL: http://www.bailii.org/ew/cases/Misc/2016/B8.html Cite as: [2016] EW Misc B8 (CC)

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IN THE COUNTY COURT AT LEEDS

		The Court House Oxford Row Leeds LS1 3BG
		11 March 2016

Introduction

1. In this case the Claimant, Mrs JR, who is represented by Mr Richard Copnall of counsel, seeks damages from the Defendant to compensate her for physical and emotional abuse caused to her by a Mr DA between January 2010 and July 2010. She alleges that DA's behaviour to her resulted in her suffering Post Traumatic Stress Disorder and an exacerbation of depression.
2. The claim is brought against the Defendant in common law negligence as the Government Department responsible for the West Yorkshire Probation Service (the Service) and its predecessor, the West Yorkshire Probation Board (the Board). On 1 April 2010 the Board was succeeded by the Service to whom its liabilities were transferred.
3. Her contention is that she was owed a duty of care by the Defendant because in the relevant period DA was under the supervision of the Board and, after 1 April 2010 the Service, as a licensee on parole. In 1994 DA was convicted of the murder of his estranged partner, D and was sentenced to life imprisonment with a minimum term of 14 years. At the time of this offence he was on bail in connection with an assault upon D and had other convictions for violence and dishonesty. He was released on life licence in October 2008 and as such he was under the supervision of the Board and subsequently the Service. It is common ground that in January 2010 the Claimant was unaware of his background but there is dispute as to when thereafter she did become aware.
4. The precise allegations of negligence are set out in the Re amended Particulars of Claim at pages 28-31 of the bundle and I set them out in full in paragraph 109 below. In short however, the Claimant argues that in January 2010 when the Board received information to suggest that she was in a relationship with DA it acted negligently in its investigation as to the accuracy of that information and ultimately in rejecting that allegation and as a result, negligently, it failed to assess the risk posed by DA to her by being in such a relationship (as indeed she was). By virtue of its neglect, she was not advised of DA's offending history and DAwas not recalled to prison. Had he been recalled he would not have been in a position to abuse her mentally and physically from January onwards until he was actually recalled in July of that year. Similarly, her case is that had she been told of his offending history in January 2010 she would have terminated that relationship then, whether he was recalled to prison or not.
5. It is right to say that in the course of the hearing a significant amount of the evidence focussed on the question of whether, once the allegation was made that the Claimant was in a relationship with DA, she should have been approached with a view to either confirming or refuting it. It gave rise to a consideration of the circumstances in which an offender's background can be disclosed on the basis that that itself feeds into an assessment of what enquiries it is open to the Defendant to make to satisfy itself as to the accuracy of information which comes into its hands. Mr Copnall suggests in paragraph 81 of his written submissions that the issue of disclosure is a red herring because in this case, he argues wrongly, the Service felt comfortable in concluding that DA and the Claimant were not in a relationship without so much as considering whether it was appropriate to approach the Claimant or indeed others with a view to making disclosure if, and to the extent, that was necessary.
6. By virtue of the Criminal Justice and Courts Services Act 2000 to which the Board was subject and the Offender Management Act 2007, to which the Service was subject, the Probation Service was (and is) responsible for the supervision of prisoners released on licence and in exercising that function it was (and is) required to have regard to the protection of the public. In the Amended Particulars of Claim this is described by Mr Copnall as the "Statutory Duty"
7. It is not however suggested that the legislation gives rise to a statutory duty of care to the public. By paragraph 7A of the Amended Particulars of Claim this claim is based firmly on the contention that there is a common law duty, as Mr Louis Browne, counsel for the Defendant, puts it in paragraph 5 of his skeleton argument "presumably parasitic upon the performance by the Defendant of its statutory duty."
8. The Defendant denies that it or its predecessor owed the Claimant a duty of care but that if it did, that duty was, on the facts, discharged in this case. It is contended that there is no authority which addresses the question of whether (and if so, to what extent) the Probation Service is liable in law to members of the public for alleged negligence in the manner in which its employees discharge their obligation to supervise offenders released on licence. The case therefore is important from a general as well as a specific, individual perspective.
9. Finally, the Defendant contends that if, contrary to its primary submission, there is a duty of care which it failed to meet then any damages to which the Claimant may be entitled should be reduced to reflect contributory negligence.
10. I am concerned only with liability which, by an order of 20 November 2014, was ordered to be heard as a preliminary issue.

Background

11. It may be thought that the background is largely irrelevant to the issue of whether, in law as a matter of principle, the Defendant owes a duty of care to members of the public in regard to its supervision of offenders on licence but the background is clearly relevant to the issue of whether a duty is owed to this claimant and, if there is such a duty, whether it was discharged in this case. It is therefore necessary to consider it in some detail.
12. Much of the factual background is agreed although certain matters are in issue. These are identified by Mr Browne in paragraph 42 of his skeleton argument as follows;

a. What did the Claimant know of DA's previous offending, when was that known, from what source(s) and what, if anything, did the Claimant do with this information?

b. What, if anything did the Claimant do when first allegedly subjected to 'harm' byDA?

c. How long had she been the subject of the treatment at DA's hands which she alleges?

13. It is not in dispute that while DA was a serving prisoner he cultivated a relationship with Ms DR who had been a senior prison officer at HMP Wakefield where DA served a proportion of his sentence. I should make it clear that there is no suggestion that DR's relationship with DA was improper. It apparently blossomed after she left the Prison Service in about 1996.
14. The Claimant was married at one time to DA's brother, MR and so DR is the Claimant's ex sister in law. By 2010 the Claimant and MR had long since been divorced. I shall refer to DR hereafter as D and to MR as M. No disrespect is intended, I do so to avoid confusion since they and the Claimant share a common surname.
15. Since July 2006 DA had been overseen by Mrs Clare Maguire in her capacity as his offender manager. She is a probation officer employed at the time by the Board and later the Service. She qualified in 2004 but has worked with violent offenders since 2002. She was promoted to a management role in 2011. It is her conduct and that of her superior Mr Robert Voakes that is in issue in this case. It is right to say that Mr Voakes saw Mrs Maguire as being an extremely competent offender manager who had supervised life sentence and other violent prisoners since qualifying. Her promotion to a management role did not come to him as a surprise. An offender manager is required to make an accurate and thorough assessment of the circumstances, and needs of the offender and the risk he poses to himself and the public ultimately with a view to his or her rehabilitation into the community if possible.
16. In order to discharge her responsibilities Mrs Maguire had to build up trust with, and insight into, DA both of which were acquired by building a relationship based upon many visits with him both in prison and outside. In addition, on many occasions she met DR while DA was on ROTL^[1], not least because if DA was a risk to anybody it was to her as his partner. Nothing ever arose to give Mrs Maguire cause for concern. She saw DR as "strong reliable and level headed" and as a "strong protective factor"
17. In her witness statement Mrs Maguire speaks of DA's conduct in prison as being very positive. He had been moved to open conditions at HMP Kirklevington in 2005. He had worked as a volunteer in a day centre and had impressed sufficiently for them to offer him a paid position on his release. He had also worked for a charity that worked with disabled adults and had attended Leeds Metropolitan University to complete a degree.
18. In her report to the Parole Board in January 2008 written in anticipation of the consideration by that board of DA's application for parole she spoke of having had a great deal of contact with DA both in prison and outside it when DA was on home visits during his ROTLs. During these temporary releases DA resided at DR's home. It seems, by reference to paragraph 5.1 of her report (D4 of the bundle), that that home was one that he and DR chose and purchased in 2007. The records show that prior to his release on parole, DA had undertaken a significant quantity of day and overnight releases as well as 12 resettlement releases of 5 days (or 4 nights) all of which were spent at DR's home.
19. The report of January 2008 advises the Parole Board that by May 2004 (actually before Mrs Maguire assumed the role of his offender manager) DA has;

"achieved all his targets set at addressing his risk"

but it recognised that;

" due to the nature of both his past and index offences the risk he poses to a known adult namely his partner, DR is currently set at a medium level this assessment suggests that there are identifiable indicators of risk of harm, namely his past offences demonstrating thatDA does have the potential to cause harm but is unlikely to do so unless there is a change in circumstances e.g. in his case the breakdown of his relationship".

The report concluded thus;

"…. I currently share the view of his seconded probation officer at HMP Kirklevington that DA has successfully completed his rehabilitation process while in custody and his continued incarceration would serve no useful purpose. Therefore I am fully supporting DA in his application for release on licence."

20. At some point in the second half of 2008 DA attended a parole Board hearing at which Mrs Maguire, amongst others, gave evidence in support of his release on licence. The Defendant did not resist the application for parole. In the Secretary of State's report it is noted

"that DA has reduced the level of risk that he represents to the public and that he has shown maturity and has engaged with offending behaviour programmes in a positive manner demonstrating trustworthiness, progress and motivation in open conditions…….and that all key report writers praise his progress and attitude. He has consolidated the relationship with his partner and has a robust and promising release plan"

21. The Parole Board is a quasi judicial body independent of the Service and the Defendant. Whether an offender is released on licence and on what terms (or indeed recalled for breach of the terms of licence) is a matter for the Parole Board and not the Service whose function is confined merely to making recommendations.
22. On 28 September 2008 the Parole Board informed DA by letter that it had directed his release on licence on the basis that he resided with DR. The letter includes the following observations;

The most recent OASys^[2] indicates low risk of reconviction, low risk of harm to the public and medium risk of (harm) to a known adult. The risk factors include anger, alcohol, relationships, attitudes to women, domestic violence and egocentricity. You have completed a substantial amount of work to explore risk; ETS, anger management, gender awareness, 1:1 work on domestic violence and time on the therapeutic community at HMP Gartree. Both in interviews with report writer and in your evidence to the panel you demonstrated a significant amount of learning from this work. You gave a cogent and active account of the index offence and accept responsibility for your actions. You have good insight into the reasons that you committed the offences and into your selfish erratic and controlling behaviour at that time. It is said that you have made considerable progress in improving emotional management and that you have learnt to discuss problems openly and with maturity. All the required work on offending behaviour has been completed…….

…….. In addition to 1:1 sessions and the time in therapy you have been tested as thoroughly as is possible while still serving your sentence. You have sustained a relationship with DR for about 10 years and there have been a number of successful home leaves to her address. She is said to be a sensible and robust woman who has a good relationship with your external probation officer such that there is confidence that she would disclose any difficulties or concerns should your behaviour deteriorate…………. There is no recent or current evidence of negative attitudes to women. You have been motivated to address this area of risk……… All assessments are positive reports and every care has been taken to test your response in the community. While there will always be lingering concerns about a possible recurrence of violence in an intimate relationship it is hard to see what more could have been done to address, test and monitor that risk during this sentence.

You have been highly motivated in recent years and taken the initiative to undertake course work to improve your education and to prepare for release…….. You have been tested on numerous town visits and ROTLs, in both voluntary and paid work and in regular attendance at university, all without breach of trust and without giving any cause for concern.

Mrs Maguire told the panel of the steps that would be taken….should there be any concerns about intimate relationships, the breakdown of a relationship, or the disclosure of a new partner."

23. The terms of his licence are important in the context of this case and include the following provisions;

a. He shall on release report to the Supervising Officer so nominated and shall keep in touch with that officer in accordance with that officer's instructions.

b. He shall reside only where approved by his supervising officer.

c. He shall undertake work including voluntary work only where approved by his supervising officer and shall inform that officer of any change in or loss of such employment

d. He shall not travel outside the UK without the prior written permission of his supervising officer

e. He shall be well behaved and not do anything which could undermine the purposes of supervision on licence which are to protect the public, by ensuring that their safety would not be placed at risk, and to secure his successful reintegration into the community.

f. He shall comply with any requirements specified by his supervising officer for the purpose of ensuring that he addresses his problems with offending behaviour.

g. He shall disclose to his Supervising Officer any developing personal relationships with women."

24. DA's release from prison on licence gave rise to an assessment in accordance with Multi Agency Public Protection Arrangements (MAPPA). There are 3 levels of risk with level 1 being the lowest. Levels 2 and 3 require the management of offenders to be undertaken on a multi agency basis involving the police as well as the probation service and often involving other interested agencies. DA was assessed as a level 1 risk with the result that his management was confined to his offender manager, Mrs Maguire.
25. The need to complete the OASys assessments continued notwithstanding his release. In order to complete them, and the Life Progress Reports to which I refer in paragraph 27 below, it was necessary for Mrs Maguire to see DA frequently. For the first 16 weeks after his release she saw him weekly and in the first year she saw him 32 times inclusive of 5 home visits. By January 2010 (which is near the start of the period with which I am concerned) she was seeing him every 2-3 weeks.

In an assessment dated 6 October 2008 Mrs Maguire recognised that in 2003 documentation from "external probation" had identified DA as having a

"history of problems in relationships with an attitude to women, the use of intimidation and control in relationships, a tendency to suppress emotions, egocentricity, use of violence, a poor image of himself, he was characterised as a charmer and a womaniser who turned to intimidation when charm did not work…"

Elsewhere in the assessment she records that DA described himself as having been manipulative in his younger days. Having said that, she herself saw him as bright and motivated but was clear that that assessment was formed because her extensive contact with him had provided her with the opportunity to delve deeply into his outlook and state of mind and not because she was in any way manipulated by him or was a victim of his alleged charms.

26. In January 2010, as it had been throughout, his risk to a "Known Adult" i.e. DR was considered to be medium but to others it was low. Between 1 December 2008 and 20 July 2010 Mrs Maguire completed 7 OASys reports. In one dated 3 February 2010 he is assessed at being at a 14% chance of proven violent type reoffending within 2 years and a 26% chance of proven non violent reoffending. Mrs Maguire's evidence is that those values are typical of a life sentence prisoner and do not render his overall risk as greater than "low" save to DR, where, as I have said, the risk was assessed at "medium".
27. The Life Progress Reports to which I have referred in paragraph 25 above are completed for the benefit of the Lifer Review and Recall Section (LRRS). Mrs Maguire was obliged to complete these reports on a periodic basis. The LRRS is obliged to assess an offender's progress in the community to ensure that his or her continued liberty is justified. In one of these reports dated 17 November 2008 his potential for committing further offences within 2 years of release i.e. by October 2010 is put at 44% but his OASys score is only 14/168 rendering as low the risk of his reoffending. By 14 September 2009 his OASys score had reduced to 12/168. The lower the score the lower is the assessed risk. In a Life Progress report of that date Mrs Maguire concluded from this that to all but Known Adults "the risk of his reoffending is at a low risk and is decreasing further". It remained a medium risk in respect of Known Adults.
28. As for the Known Adult, namely DR it is also right to say that over the period since his release on licence in October 2008 Mrs Maguire had had the opportunity to confirm her view of DR. She saw her as an independent and competent woman. Mrs Maguire did not feel that DA had a hold over DR and she was not prepared to criticise DR's judgment for forming a relationship with a man of DA's background bearing in mind the relationship had at that time existed for more than a decade and his conduct on licence had not given any cause for any concern.
29. Mr Voakes, at that time the Operational Assistant Chief Probation Officer, was obliged to endorse his comment on Mrs Maguire's Life Progress Report of 14 September 2009. He said

"So far so good, but still less than a year back in the community and fortunately challenges have been limited. Given his offending history and relationships before the murder it's important to continue to be alert to the potential for dishonest or aggressive behaviour"

30. In 2008, after his release from prison, DR introduced DA to her brother, MR. He was not informed of DA's past and indeed did not learn of that until 2010 in circumstances that I shall come to.
31. In 2008 he was told by DR that DA was in need of work experience to help him finalise a dissertation he was undertaking for a masters degree. MR offered to place him in a business that he owned in North Wales. He impressed MR who, in October 2008, offered him full time employment which DA accepted.
32. The question of disclosure of his past to his employer was clearly one that exercised Mrs Maguire. In a Life Progress Report dated 13 February 2009 she says, apparently in the context of his placement for the purpose of his dissertation, that "This opportunity does give him the chance to work in an industry setting without having to go through the process of disclosing his offending past".
33. In the further Life Progress Report dated 19 September 2009 Mrs Maguire reports that;

"DA has found himself in a number of situations where disclosure has been necessary, such as with regard to him holding a company cheque book. He has dealt with these matters in a mature and appropriate way"

34. It is Mrs Maguire's evidence therefore that DA told her that he had voluntarily told MR of his offending history and that he was on licence. It transpires that that was untrue. It was her evidence that the obligation to make that disclosure is indeed primarily that of the offender.
35. There will inevitably be occasions when the Service may feel that there is a need for disclosure to be made but an offender does not do so or the Service is not satisfied with the offender's assurance that he has done so. There are detailed policies in place which govern the circumstances in which the supervising officer can disclose an offender's record to a third party or require an offender to do so in a way that the supervising officer can verify. These policies are intended to strike a balance between the protection of the public and the privacy of the individual.
36. The circumstances where the Probation Service can disclose to a third party information regarding an offender's background and/or conditions of his licence are governed by Chapter 13 of the "Lifer Manual" dated 15 May 2006 (Order Reg 4700) and in MAPPA Guidance.
37. The Lifer Manual states as follows;

"As far as disclosure is concerned, the High Court has held in the Axon case that each case must be considered on its own facts and that, as a matter of law there is strictly no "presumption" to either disclose or withhold information. Disclosure to non-public bodies for example, employers (voluntary or otherwise) and accommodation suppliers/providers would be determined by risk. There would of course be circumstances where disclosure to third parties would be relevant on risk/public protection grounds, for example disclosure of a domestic murderer's conviction to a new spouse/partner. Further information about disclosure is contained in the MAPPA Guidance issued under probation circular 54/2004"

38. Section 6 of the MAPPA Guidance current at the relevant time deals with disclosure and the intricacies involved in this particular issue cause that section to run to 10 pages. The following extracts are I think the most pertinent;

Paragraph 6.1

"Disclosure, for the purposes of this section is the sharing of information about a MAPPA offender with a third party for the purpose of protecting the public…

Disclosure to any third party will be the exception to a general rule of confidentiality. Any disclosure must be part of an overall plan of managing risk posed by an offender"

Paragraph 6.2

"MAPPA Guidance requires that the risk assessment of all MAPPA offenders identifies those persons who may be at risk of serious harm from the offender……… as part of this process, consideration must be given in each case as to whether disclosure of information about an offender to others should take place to protect victims, potential victims, staff and other persons in the community. This applies to all categories and levels of MAPPA cases.

The purpose of disclosure of information is: to facilitate any risk management plan, to protect the public as effectively as possible and to reduce the risk of serious harm. Any disclosure must be lawful, proportionate, accurate and necessary." ...my emphasis)

The principles underpinning disclosure to third parties are the same as for information sharing between agencies. It inevitably involves greater sensitivities given that disclosure may be to individual members of the public (who may not understand the gravity and confidentiality requirements of the information being shared with them) as opposed to government or law enforcement bodies.

Even in emergency situations, wherever possible, the decision to disclose should be made on a multi-agency basis and single agency decision making to disclose information on offenders is strongly advised against.

Any decision (positive or negative) to a third party disclosure must be clearly recorded in the level 2 and 3 MAPP meeting minutes and on case management records. For all level 1 cases, the decision must be clearly recorded on the lead agency's case management record.

39. Paragraph 6.3 of the Guidance considers the issue of when disclosure should be considered and includes "where others may be at risk". As to whether disclosure is actually needed however a critical factor will be the proportionality requirement to which I refer above. The Guidance sets out criteria which should be met before disclosing information about an offender to a third party. Those include a consideration of the alternatives to disclosure and the involvement of the offender both in the decision regarding the need to disclose and in the actual disclosure itself.
40. Paragraph 6.7 deals with level 1 cases such as this. It imposes on the Probation Service the duty to decide whether disclosure should take place. In more serious cases that decision is taken on a multiagency basis. In level 1 cases the decision to disclose is one that must be approved by a senior officer, such as Mr Voakes.
41. Mrs Maguire did not feel that there was any need for her personally to disclose DA's background to MR or verify with him that DA had done so because, applying the guidance, the risk to the public was low and was outweighed by privacy considerations.
42. Having deviated a little to set out the policy with regard to disclosure, I now turn back to the chronology. Because his place of work was situated in North Wales and was thus too far to commute on a daily basis it was necessary for DA to stay over in that area during the week, sometimes with MR at his home in Warrington and sometimes in a hotel. The Probation Service knew of, and approved, these arrangements.
43. It seems clear that as a result of working for MR and staying with him from time to time DA and MR formed something of a friendship and this led to MR introducing DA to the Claimant in December 2008. The Claimant and MR had remained on friendly terms following their divorce and MR played a proper part in bringing up their children, J and A.
44. In 2009 the Claimant and MR were having problems with J, DA suggested that he may be able to help, drawing on the experience he told them he had had in dealing with young offenders as some sort of volunteer. His offer of assistance was accepted. This obviously brought him into repeated contact not only with J, to whom apparently he was indeed very helpful, but also with the Claimant and they became close. Their relationship became intimate in the latter part of 2009. She was aware that he had been in a relationship with DR but he had told her that it had failed.
45. In December 2009 he moved into a barn conversion that the Claimant owned, about a 10 minute drive from where she lived. He told her that he was not happy there however and not long after he commenced boarding with her and shortly thereafter, sharing her bedroom.
46. Mrs Maguire was unaware of these developments. It will be remembered that the terms of DA's licence included a condition to reside only where his supervising officer approved and to disclose any developing relationship with another woman. So far as she was concerned DA's time on licence had been "uneventful" and, when not staying overnight away from DR for business purposes, he was living with her in Ossett, Wakefield. She did note however on 11 January that he looked tired and drawn. She put that down to his work schedule and the commuting. DA said in evidence that, in truth, it was probably the manifestation of the stress he felt in maintaining both relationships and the deception of both women that that involved.
47. On 21 January 2010 Mrs Maguire received a telephone call from DR. A record of that conversation indicates that she told Mrs Maguire that

"DA and her relationship was over. He appears to be having an affair with her sister in law. She has found out this morning. She states that he has not been living at the house for the past 3 weeks"

At paragraph 40 of her witness statement Mrs Maguire says that she was aware of the existence of the Claimant in that she knew that she was DR's sister in law and MR's sister and she was aware that there was no love lost between DR and the Claimant dating back to the breakdown of MR and the Claimant's marriage. In any event, arrangements were made for DR to see Mrs Maguire. Mrs Maguire also contacted DA with a view to him meeting her to discuss this serious development. Her records indicate that she got in touch;

" with DA to ascertain what he was up to….discussed possibility of recalling him or how other to manage this situation" .

The discussion to which she refers was one she had with her immediate line manager to whom she spoke immediately after DR's initial telephone call.

48. DR contacted Mrs Maguire on 21 January because she had been contacted that day by the Claimant. The Claimant had wanted to know why DR had sent a birthday card to MR in which she had included DA's name when, so far as the Claimant was then concerned, he was no longer in a relationship with DR. It was DR's evidence that the Claimant did not suggest that she herself was in a relationship with DA, much less that she was having an affair with him but inevitably, having put the phone down, that suspicion was raised in DR's mind and it was that suspicion that prompted her to telephone MR. He assured her that he did not think that the Claimant and DA were in a sexual relationship. That was some limited comfort to DR but nevertheless she telephoned Mrs Maguire in a state of some distress.
49. In fact the evidence of the Claimant in paragraph 51 of her witness statement is at variance with that of DR. In her witness statement the Claimant states that when she telephoned DR she told DR that;

"DA and I had been seeing each other since August 2009 and that he had been living at my house since 27 December 2009"

Mr Browne accepts that if this was said then it was in effect a positive assertion that DA and the Claimant were in a sexual relationship.

50. Mr Copnall argues that this is important not only because of what it conveyed to DR but what she then actually ultimately conveyed to Mrs Maguire. He refers me to paragraph 12d of the Amended Defence wherein it is said that in discussions between DR and Mrs Maguire in further interviews DA and DR explained that;

"the claimant had tried to come between the couple (DA and DR) and made up the fact that she was having a relationship with DA, as a result of an ongoing feud between the two women after the divorce of the Claimant from DR's brother"

51. He makes the point that this is a concession in the pleading to the effect that Mrs Maguire was told^[3] that the Claimant had actually told DR that she (the Claimant) and DA were having a sexual relationship. As Mr Copnall puts it in paragraph 73 of his final submissions;

"The Claimant had made a factual allegation that DA was in a relationship with her".

52. He also points out that Mrs Maguire herself concedes that she knew that the Claimant had herself asserted that she and DA were intimately linked because in a Report for Review of Re-Release dated 26 August 2010 she says verbatim what was pleaded in paragraph 12d of the Amended defence and to which I refer in paragraph 50 above.
53. Mr Copnall argues that Mrs Maguire and Mr Voakes wrongly viewed this as an allegation made by DR when in fact it was an allegation made by the Claimant. The significance is that when considering the weight to be attached to the retractions by DR that subsequently followed and to which I refer below, regard should have been had to the fact that it is one thing for DR to retract an allegation, it is quite another to treat DR's retraction as the Claimant's retraction and that in doing the latter, and permitting that to inform the nature and extent of their investigation, the Defendant acted negligently.
54. Prior to a meeting with DR and DA which was prompted by that telephone call, Mrs Maguire spoke to Mr Voakes and apprised him of this development. It was one which clearly concerned Mrs Maguire who had identified that the risk faced by DR was enhanced if her relationship with DA was foundering. Indeed, it was clearly in Mrs Maguire's mind that the circumstances, if true, may have warranted a recommendation to the Parole Board for DA recall to prison. In a further telephone call to DR that day Mrs Maguire mentioned that DA was "close to recall for not informing me of change of address etc"
55. As a result of the conversation with Mr Voakes the decision was taken to make enquires as to the availability of a place for DA in a bail hostel until the Service "could be satisfied that risk has been reduced and the relationship OK". Such hostels impose a curfew. The one in Leeds to which he was actually sent, Holbeck House Hostel, had a curfew from 11pm to 7am.
56. As I understand it, both DA and DR attended at Mrs Maguire's offices that day. DA denied that he was in a relationship with the Claimant or that he had been absent from the home other than when staying over for business purposes. It transpires that he was lying both to Mrs Maguire and to DR. He was in a relationship with the Claimant and continued to be until July 2010. At this point however, notwithstanding his denials it was decided to put him into Holbeck House Hostel since, even if the allegations were untrue, they revealed a fault line in the relationship between DR and DA that had to be explored.
57. When DR joined the meeting, albeit that it appears that she repeated her contention that DA had not been living with her for 3 weeks nonetheless, she was upset at the prospect of his being removed to the hostel. She felt that the relationship had hit a rocky patch simply because at Christmas DA was particularly aware of his lack of a relationship with his own family. She sought, unsuccessfully, to convince Mrs Maguire to change her mind. She offered to move out of the house herself to enable DA to remain there.
58. It was suggested to Mrs Maguire that this might in itself have demonstrated that DR was under DA's control. Mrs Maguire recognised that the offer was strange and was one which might in some cases have rung alarm bells about the nature of a relationship but she was confident, from her knowledge of DR and the couple's relationship gained over many years, that that was not the dynamic of this relationship.

It seems that at the meeting she repeated her suspicion that DA was in a relationship with the Claimant. Her note of that meeting (at D284) states;

" he has not been living there for 3 weeks and has been staying at a property owned by her ex sister in law, JR. She feels he could be having an affair with her but does not know how long this may have been going on for. ISSUES..not informed JR of history of offending"

59. It will be seen that Mrs Maguire identified the risk to the Claimant if this account were true and she and DA were in an intimate relationship. The note however suggests that at this point in time DR had not asserted to Mrs Maguire that the Claimant had told her, in terms, that she and DA were having an affair. In any event, it was Mrs Maguire's oral evidence that DA's risk to women was considerably greater at the point that his relationship with them was breaking down rather than at the point where the relationship was new and developing. Nevertheless it is not suggested that if indeed DA was in a relationship with the Claimant, that there was no need to advise her of his background. Indeed Mr Voakes indicated in his evidence that if that was the case then his background should be disclosed to her.
60. It was Mrs Maguire's evidence that at this point she was approaching the issue on the basis of a working assumption that what DR was telling her was the truth^[4] but that before any further investigations were undertaken there was a further significant development.
61. It is my understanding of the evidence that it was on 22 January that Mrs Maguire received a further call from DR who retracted what she had said on the previous day. That is supported by an entry in her records at D251 in which she describes a telephone conversation that day in whichDR is trying to "back track" from the allegations she had made the day before. When Mrs Maguire reminded her that she had said yesterday that DA had not been living with her for 3 weeks she recorded DR as telling her that "she had got that wrong and she has since checked her diary". In her witness statement at paragraph 47 Mrs Maguire states that DR told her that the allegations she had made were fabricated. I note from their final submissions that both counsel appear to understand that the retraction was first made on 25 January. It has however been the evidence of Mrs Maguire that the retraction was made within 24 hours.
62. There are entries dated 22 January in an OASys report of 27 July 2010 as follows;

"this person (the Claimant) does not know about DA's history. It also transpires that although I was given the impression that DR's family knew of DA's history they are not aware of his index or previous offending..this new information has clearly given a new perspective on how this case is managed…."

"…this deception is quite worrying."

"…..(DR's) family do not know about his index offence. It was always implied that the family were close and supportive of them. This further indicates that he has not always been completely honest with the probation service., further raising concerns of his honesty with regard to working with the service."

63. There is a record dated 25 January of a further discussion with DR but it is unclear to me whether that is a further conversation that took place on that date or is simply a record of a conversation on an earlier day or indeed whether it is simply a fuller record of the revelation that DR made on 22 January. In that account Mrs Maguire records being told that the initial accusations were fabricated, especially about the amount of time that DA had been away from home. DR said that she had felt jealous because of her suspicion that he was cultivating a relationship with the Claimant but that she now realised that her suspicions were misplaced.
64. Mrs Maguire's evidence is that she was sceptical about what she was told at least in regard to DA's absence from the home. Her inclination was to believe that the truth lay somewhere between what both were telling her in this connection. It was one of the reasons why it was felt appropriate to keep DA in the hostel notwithstanding the retraction, in order for the apparent fault lines in the relationship to be explored more effectively. Another reason was to see if any more information came to light to clarify whether indeed there was a relationship with the Claimant.
65. However, Mrs Maguire's evidence is that (wrongly as it turned out) she was less sceptical about DA's denial of an affair. DR had said in terms that she had overreacted to this telephone call from the Claimant. It seems clear that in the telephone call of 21 January and indeed at the meeting held thereafter Mrs Maguire's knowledge was limited to an assertion by DR that the Claimant could be in a relationship with DA. Any concession in the pleading that Mrs Maguire knew that the Claimant had actually told DR that the Claimant and DA were sexually involved does not throw light on when, specifically, that knowledge was acquired. It should be borne in mind that the time between the making of the allegation and its retraction was not great.
66. At paragraph 51 of her witness statement Mrs Maguire explains why she felt that DR's assertion that she had overreacted was credible. Essentially since his release DA had grown in confidence, he was less emotionally and financially dependent on DR and there had accordingly been a shift in the dynamics of their relationship which could give rise to feelings of insecurity on the part of DR and that could lead to jealousy and overreaction. At some point, Mrs Maguire thinks probably during the meeting at which she retracted her allegations, DR admitted that she was paranoid about the relationship.
67. As far as approaching the Claimant for corroboration of DA's denial that he was involved with her, Mrs Maguire's evidence was that she felt that it was not open to her to seek corroboration from the Claimant because in the circumstances of the case the disclosure to her that that would inevitably involve was not justified. She accepted that she had received no training on issues of disclosure or indeed how to effectively investigate contested allegations such as she was initially presented with here. Her evidence was that in respect of both however she had the support of colleagues in the department, in particular in this case, Mr Voakes.
68. On the issue of reliance on the account that DR and DA gave in the course of the retraction, in paragraph 26 of his witness statement Mr Voakes points out the need to take account of historical information (all of which was supportive of DA in the sense that he had positively engaged to date with the rehabilitation process). In addition he points out that DR retracted the allegation and indeed confessed that it was a fabrication within 24 hours and that DA not only denied the allegation but both parties wished the relationship to continue. In addition there were no independent risk indicators existing at the time in the form of, for example police reports, previous allegations of violence or issues with regard to alcohol drugs or employment. Nor has there been any failure by DA to engage with the Service.
69. As for disclosure of DA's background to the Claimant either for her protection or in order to acquire information from her in order to determine whether DA was misleading the Defendant, he referred to the guidance in the Lifer Manual and the MAPPA guidance that I have referred to above. He points out (at paragraph 23 of his witness statement) that the Defendant would;

"not ordinarily make disclosure to a third party where no offence has been committed, no complaint had been made and no other independent evidence of a developing relationship between the offender and the third party existed".

70. At paragraph 24 he goes into some detail about the disclosure process. It is as well to set out the relevant part

"The decision to disclose is a formal process which must itself be risk assessed and documented. The level of any disclosure relates directly to the level of risk posed by the offender and the usefulness of the disclosure to inform and protect those identified as at risk. It is a balancing exercise between protecting the public and protecting the offender's right to privacy since inappropriate disclosure can lead to complaints of breach of confidentiality. Our practice was that any disclosure to a 3rd party had to be authorised by a senior manager (usually myself).

71. In a letter to the claimant's former solicitors dated 31 October 2011, on the question of disclosure he had the following to say;

"When considering a response to the allegation that a licensee has breached a requirement to disclose details of a developing relationship we must have some confidence that the allegation is well founded, before disclosing details of the offending history to a third party.

In this case an allegation was made and retracted within a few days. The licensee was removed for a period of 3 weeks and the complainant interviewed separately. She maintained her allegation had been fabricated.

In these circumstances it did not seem appropriate for us to contact the third party, disclose information concerning DA's history and seek comment on a possible relationship

Had a more definite or confirmed information being available contact would have been made with JR"

72. Mr Copnall asked Mr Voakes and Mrs Maguire why it was simply not possible to seek DA's consent for Mrs Maguire to contact the Claimant and ask her whether she was involved with DA. Mr Voakes pointed out that Mrs Maguire could hardly do that without revealing who she was and why she was asking in which case disclosure of his background, at least to some extent, would be inevitable. In addition in any event even if consent from the offender is forthcoming it is not determinative, an offender may not appreciate for example that disclosure may give rise to consequences unforeseen by him such as vigilante action.
73. There is, pointed out Mr Voakes, something of a vicious paradox in cases such as this. The process of gathering information intended to inform the Defendant on the question of whether disclosure is justified as being lawful, proportionate, accurate and necessary should not itself involve disclosure. In short, one should not disclose in order to acquire information designed to establish whether disclosure is appropriate.
74. Mrs Maguire did not see as a missed opportunity her omission to ask DA if he objected to disclosure of his background to the Claimant for the same reasons proffered by Mr Voakes and the fact that, for the reasons I record above, it was her view that DR's and DA's assurances that he was not in a relationship with the Claimant were credible. It is right to record that in answer to a question from Mr Copnall, Mrs Maguire readily accepted that if faced with a similar situation again she may seek the offender's consent to approach the third party and make the disclosure necessary to obtain verification of the offender's account but even then she would not have made any such approach without discussing it with Mr Voakes or his equivalent and that, for the reasons set out in paragraph 72 above, it does not automatically follow that in the end an approach would be made to such third party.
75. DA remained in the hostel until 15 February. During that time Mrs Maguire continued to monitor the relationship for signs that it was breaking down or that she was otherwise being misled. Her evidence is that she had almost daily contact with him for the first 2 weeks, usually in the office but once at the hostel and in addition she had frequent contact with DR. She confirmed that she understood that, in the light of events, i.e. the allegation and the speedy retraction that it was appropriate to be cautious when assessing the reliability of what she was being told by both and she exercised that caution.
76. Mrs Maguire's attendances on DA and DR are minuted. They reveal an evolving improvement in the relationship between DRand DA sufficient to justify his return home on 15 February.
77. On 27 January for example Mrs Maguire records that "both appeared loving and affectionate towards each other". And that Mrs Maguire was able to initiate discussions about plans to move DA back into the house. At a meeting on 28 January DA speaks of trying to patch up the relationship and reports that they speak every day and that the time apart is helping to heal the situation.
78. On 29 January Mrs Maguire recorded as follows;

DA attended at office, discussed events of the week, his feelings towards DR. He does not feel any resentment or anger towards her and is understanding of why she felt that way. Discussed how we can learn from the experience and exactly what his relationship means to him and her. He became quite emotional at the thought of losing her and the relationship deteriorating.

Once again there was discussion of a phased return to the home.

79. There was a meeting between Mrs Maguire, DR and DA on 12 February. The minutes record that

"Everything has run smoothly with no problems being reported. Both spoke of how things have improved between them over the past few weeks".

80. There was a further meeting between all three on 15 February, the day of DA's discharge from the hostel. The minute states

(DA) attended at office with DR, both have done a great deal of soul searching and made many decisions with regard to priorities, such are (sic) their relationship, DA is to (sic) now at work 3 days and so there is no need for overnight stops and long days. He is also planning on looking for another job nearer home…. DR is also planning on speaking to her friend whom she has known for the last 10 years or so. It would allow her to have an outlet without having barriers or secrets. Although these last 3 weeks or so have been difficult the pair have said that it has given them time to reflect and work on their relationship which they both say is the most important thing in their lives. DA knows he is back to weekly reporting and that I will be in contact with DR for a time also. They are both aware that if further difficulties arise they must discuss it with me to avoid further instances like this or recall.

81. Mrs Maguire's evidence was that in fact, as a result of her conversations with both DR and DA from a very early stage she did not believe that he was involved with the Claimant. She emphasised that that view was informed not only by what DA was telling her (she accepted that he could be manipulative) but also by the fact that DR was clear that she had overreacted (and her reasons for doing so made sense) and that DR was, in Mrs Maguire's view, level headed, strong, reliable and a mature and responsible person.
82. Like Mr Voakes, Mrs Maguire was also at pains to point out that in any event the only way to establish the position definitively was to contact the Claimant but that raised the disclosure issues that I have already mentioned.
83. I turn to issues regarding Mrs Maguire's consideration of the risk to the Claimant. Mr Copnall took her to an OASys report of 27 July 2010 which contains at various points her observations prompted by the initial revelation by DR of DA's suspected infidelity. It is clear that Mrs Maguire recognised that in the circumstances the risk from DA faced by DR was heightened and indeed on 3 February the documents show that she raised from "medium" to "high" her assessment of the risk of serious harm to DR. However no consideration is given to the risk to the Claimant. Mr Copnall points out that the allegation that had been made by DR refers specifically to the Claimant and I have already remarked that Mrs Maguire believes that she may have known that DA was coming into contact with the Claimant via J
84. Her response was that while the Claimant was at risk, if indeed she was in a relationship with DA, the risk posed by DA was directed more to those with whom he was in a failing relationship and, more importantly, once DR had retracted her allegation in terms that had the ring of credibility there was little evidence that he was in a relationship with her and that she (Mrs Maguire) was justified in believing that in fact there was no relationship.
85. Before moving on to the period after 15 February it is right to record that it is the evidence of both Mrs Maguire and Mr Voakes that the latter was very closely involved in the management of issues following the initial allegations by DR on 21 January. He was consulted by Mrs Maguire shortly after DR's initial phone call and it was he who advised that enquiries ought to be made about the availability of a hostel. He was consulted by Mrs Maguire as soon as the retraction was made and when the decision was made that nonetheless DA must remain in the hostel. He was continuously apprised of Mrs Maguire's discussions with DA and DR following his removal to the hostel and closely involved in the decision to discharge him from the hostel on 15 February. He deals specifically with the issue of his discharge from the hostel in his witness statement (paragraph 28) when he says that he and Mrs Maguire discussed:

"…..DA returning to live with DR at her home. DAd had been living at the hostel for one month. During this period there had been no further concerns expressed by DR; Clare had seen the couple together and felt that there was no longer any risk to DR. It was consequently agreed that DA be permitted to return home."

As Mr Copnall points out, Mr Voakes himself did not see DA or DR, he relied on Mrs Maguire's assessments of the situation. Mrs Maguire was clear that she had managed the situation appropriately even though it transpired that she had in fact been hoodwinked.

86. It seems clear from his oral evidence that Mr Voakes considered whether there ought to be an approach to the Claimant that would inevitably have resulted in some element of disclosure. He was clearly not averse to doing so if it had been appropriate but was clear that, on the basis of the retraction and the fact that Mrs Maguire (in whom he reposed great faith and confidence) felt it was a credible retraction, disclosure was not appropriate. He accepted that, as events turned out, that conclusion was wrong but it was a decision that was appropriate and justifiable at the time,
87. Mr Copnall put it to him that if he had known that DA was living away during part of the week and that latterly that was in a home owned by the Claimant and that he was mentoring her son he may have taken a different view about an approach to the Claimant. His evidence was that that may have prompted an approach to MR in confidence to see if he might know anything that might give a clearer picture. He indicated that the animosity that appeared to exist between the Claimant and DR would have militated against an approach direct to the Claimant in the first instance. However his position was that he was not aware that Mrs Maguire was herself aware that DA may be staying in a home owned by the Claimant. As Mr Copnall himself recognised the question was hypothetical.
88. After DA's return home as far as Mrs Maguire was concerned she continued to see him but nothing gave rise to any concerns until July^[5]. As I have said, it is accepted that at this time he was continuing his affair with the Claimant but neither Mrs Maguire nor indeed DR suspected that that was so.
89. It is right to record that on 19 July Mrs Maguire received a call from the police in Warrington. Her records reveal that:

"..they (the police) are looking for (DA) to question him on an assault against (the Claimant), police there seem to think that DA and (the Claimant) are in a relationship and that he is living in Warrington. I told them this info is not correct and that he has a partner here and has lived with DR since his release from custody.."

90. In her statement Mrs Maguire stated that she recalls having a bit of an argument with the police officer about the fact that DA was living in West Yorkshire, not Warrington.
91. The continuing relationship between DA and the Claimant finally came to light when a colleague of the Claimant's, PD, undertook a search of the internet and discovered DA's conviction for the murder. She had initiated the search because she was concerned about DA's behaviour towards the Claimant and his apparent stalking of her at her place of work. She told the Claimant and she also telephoned the police in Warrington who contacted Mrs Maguire on 19 July.
92. The OASys report of 27 July records events thereafter;

"20 July 2010: information has been received to say that DA is wanted in connection with an assault and threats to kill. The victim is a JR, the ex-sister-in-law of DR, his partner. He denies the allegations and has handed himself into Wood Street (police station). DR continues to support DA. Refused charge no evidence. However given the seriousness of the allegations and threats to kill DA placed in hostel for a period of one month (as a start) he is also to report daily to probation between the hours of 12 -1pm

21 July 2010: new information suggests allegations could be true. DA continues to deny but there are now real concerns for the safety of JR. Emergency recall has been instigated.

93. The request for recall to prison addressed to the Parole Board is dated 21 July. In fact the Parole Board did not immediately recall DA but rather they requested further evidence of the existing relationship between the Claimant and DA. When that was supplied he was recalled.
94. There are two final issues with regard to background. First, I record that it is common ground that at some point before July the Claimant was told by DA that he was a convicted murderer. The Claimant states that she was told this in May 2010 and that date is confirmed by MR who was also present when the confession was made. DA says that he made the confession to both in February of that year.
95. There is also a major dispute as to what the confession actually entailed. DA says that he told the Claimant and MR the truth namely that he had murdered his partner. MR and the Claimant state that he told them he had caught his partner and her lover in bed together, that he had taken the man to an industrial unit to interrogate him and had inadvertently struck him with such force that he died. He said he had tried to save his life and had called an ambulance but to no avail. The difference is significant, although she did not say so in terms so far as my notes record, I think it is the Claimant's position that she would not have entertained a continuation of the relationship had she known the truth.
96. Secondly, there is the issue of DA's conduct to the Claimant during their relationship. The Claimant deals with this at length in her witness statement and I do not need to set it out in detail. Suffice it to say that she paints a picture of a controlling, manipulative, possessive and violent individual of whom she was frightened but one who at times could be sensitive, helpful and supportive. In short the Jekyll and Hyde sort of character that often characterises the abusive individual. In his witness statement at paragraph 31 DA denies that he was violent towards the Claimant. It was not a matter about which he was cross examined but equally Mr Browne did not suggest to the Claimant that her account was inaccurate. In any event, this issue is perhaps only relevant to the question of contributory negligence about which I make some observations at paragraph 100 below.

Evidence

97. Most of the evidence that is germane to the issues with which I am concerned has been addressed in the background section above. For completeness I record that in addition to hearing from the Claimant, DA, DR and Mr Voakes I also heard MR, PD and the Claimant's daughter A. It has to be said that that the evidence of the Claimant, MR and A was not contentious other than that DA disputed the allegations of abuse and also the Claimant's and MR's evidence of what DA had disclosed to them about his offending history and when such disclosure took place.
98. Let me deal therefore with that latter issue. I prefer the evidence of MR and the Claimant in that connection over that of DA. It is clear that DA is content to lie when he believes that it advantages him to do so. Even leaving aside his offending history (which would suggest that) on the basis that the offences occurred many years ago, the fact is that he maintained a very sustained and bare faced lie to both DR and Mrs Maguire about his relationship with the Claimant and indeed he maintained a corresponding lie to the Claimant about the true position. He himself accepted that he can be deceitful, indeed it is difficult to see that even he could fail to recognise that.
99. It might be said that there is an incentive on the Claimant to lie about what she was told by DA about the circumstances of the offence for which he was imprisoned for life. After all, if she was indeed told by him that he had murdered his partner, the mother of his child, but she decided to remain with him nonetheless one can imagine that may cause her difficulties in successfully pursuing her claim without it falling even at the causation hurdle.
100. Mr Browne would argue that it may also be relevant to the issue of contributory negligence that he raises. That would only be so however if the court took the view that, in principle, a woman who failed to extricate herself from an abusive relationship was herself at fault in some way. On the basis that a victim of domestic abuse is usually under the control of her abuser because he has instilled into her feelings of low self esteem which make her susceptible to manipulation, such a principle is not attractive. In my view it would be not only odd but distinctly unsavoury if the victim of abuse was found as a general rule to share in some way with the abuser the responsibility for the damage caused to her by her abuser.
101. DA evidence was that he felt obliged to disclose because he felt that the web of deceit that he had spun looked like it may be beginning to unravel. It seems to me far more likely than not that any cure for that which he adopted would be one involving the least risk that the relationship (which clearly at that time he valued) would be terminated by the Claimant. It is no doubt true that many if not most women (even those in an abusive relationship) are likely to bring a relationship to an end on an admission by their partner that he was a murderer and it is reasonable to assume that DA concluded that the chances of that happening were magnified if the partner learnt that the victim was their partner's former partner.
102. Additionally, there is little incentive upon MR to lie about what he was told or when he was told it and his evidence in that connection was clear, forthright and believable.
103. Finally, there is the evidence of PD that when in July she disclosed the true nature of DA's crime the Claimant broke down and was physically sick and that she heard the Claimant on the phone to DA saying "I know what you did to D". This is wholly consistent with the Claimant's account that she learnt those details from PD and not from DA in the February.
104. Accordingly I find as a fact that it was not until May that the Claimant learnt that DA was a convicted murderer and that she was told at that time that the victim was his former partner's lover and that it was not until late July shortly before DA's recall that she learnt the true position.

Duty of care

105. In his skeleton argument and final submissions Mr Browne characterises this as a case of general importance on the basis that a finding in favour of the Claimant would extend the concept of duty of care beyond its current scope. Mr Copnall puts his case on less ambitious terms in paragraph 62 of his final submissions. He states

"a. The task of the court is to determine whether the Defendant owed the Claimant a duty on the specific facts of this case. The court cannot, and should not, determine whether a similar duty might or might not exist in other, hypothetical, situations.

b. In particular, the court is not concerned with whether such a duty might be owed (contrary to the Defendant's pleaded case) to:

i. An unidentified individual;

ii. The members of a group e.g. women;

iii. All those who might be affected by the actions of a prisoner released on licence.

Such questions are to be decided in future cases, when required by the facts of those cases."

It seems to me that that is essentially the correct approach and the one that I shall therefore adopt but it is still necessary to look at general principles.

106. Having said that, of course the first port of call in the determination of the question of whether the Defendant had a duty of care to this Claimant is to consider the pleadings.
107. As I have said, the negligent conduct pleaded is a failure to take reasonable care to investigate the accuracy of DR's initial allegation (which it transpires was true) and thereafter arranging for the recall of DA to prison.
108. It is as well to set out the Particulars of Negligence since they are comparatively brief. The Claimant complains that the Defendant;

a) Accepted the retraction in preference to the true account:

i. Without seeking any independent evidence;

ii. Without any or any proper regard to DR's

1. lack of independence (by virtue of her relationship with DA)

2. potential lack of integrity (she had conducted a relationship with a prisoner whilst a serving prison officer)

3. lack of reliability (having admitted to fabricating a report to the Defendant)

iii. Without any or any credible explanation for why DR would have fabricated the true account;

iv. Without any or any proper regard to DA's

1. Likely desire to avoid a sanction following his breach of the conditions

2. Potential lack of integrity (in the light of this criminal history)

3. Potential for manipulation (having conducted a relationship with a serving prison officer whilst incarcerated

v. Without undertaking any or any reasonable assessment of the risk to the claimant of doing so;

vi. Or at all

b) Accordingly, failed to arrange for the arrest of DA and the revocation of his licence (or take any other steps to protect the Claimant from DA on 21 January 2010 or at any time until about 21 July 2010.

109. As regards b) above, Mr Copnall accepts that the question of revocation of a licence and recall to prison is not a matter for the Defendant. It is a matter for the Parole Board, all the Defendant can do is request a recall.

The Law relating to duty of care

110. In Caparo v Dickman [1990] 2 AC 605 Lord Bridge set out the now familiar three stage test. A duty of care will exist if there is

a. foreseeability of harm

b. a relationship of proximity or neighbourhood

c. the situation is one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

111. In this case Mr Copnall argues that it is clearly foreseeable that the Claimant was at risk of harm and that the relationship between the Claimant and the Defendant is sufficiently proximate to meet the test. The issue so far as he is concerned is whether it is fair, just and reasonable to impose a duty of care.
112. It is not my understanding that Mr Browne asserts that harm to the Claimant was not foreseeable in the ordinary sense of that word if she was in a relationship with the Claimant. Clearly, on the Defendant's own evidence, in that situation even if the risk of harm was assessed at the same level as it was with regard to DR i.e. medium, then the risk is still foreseeable.
113. It seems to me that using the word "foreseeability" in its ordinary sense, even if it is right to say that since the risk of harm to those not in a relationship with DA was still seen as "low" in January 2010 rather than non existent, it must still have been foreseeable. In my judgment foreseeability in common parlance is not dependent on the realisation of the eventuality being probable. Its eventuation can be exceedingly unlikely but still foreseeable. In my view if I buy a lottery ticket it is foreseeable that I may win some money but it is still highly unlikely.
114. The issue however is whether something that is perhaps foreseeable in the ordinary sense is foreseeable in the legal sense. In Smith v Littlewoods Organisation Ltd 1987 SC HL 37 Lord Mackay of Clashfern felt that the test was;

"whether in all the circumstances a reasonable person in the position of the defenders would be bound to anticipate that there was a real risk that the type of damage that resulted was likely to occur".

115. Mitchell v Glasgow City Council [2009] UKHL 11 involved the determination of whether the Defendant was liable to the estate of one of its tenants who was killed by another of its tenants. The assailant had been abusive to the deceased and had threatened to kill him. The deceased reported this to the Defendant. Without warning the deceased that they were going to do so, the council summoned the assailant to a meeting and threatened to evict him. Soon afterwards the assailant attacked the deceased causing him fatal injuries. The estate sued the council alleging that the Defendant had been negligent in failing to warn the deceased of the meeting so that he could take some steps to protect himself. In finding that the Defendant owed no duty of care Lord Hope undertook a detailed analysis of the issue of foreseeability (amongst other principles of law to which I refer below) and having made reference to the opinion of Lord Mackay in Smith went on to say;

There are other indications in the authorities that a high degree of likelihood of harm may be an appropriate limiting factor: see Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1030, per Lord Reid. In Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273, para 21 Lord Nicholls of Birkenhead said that the concept of reasonable foreseeability embraced a wide range of degrees of possibility, from the highly probable to the possible but highly improbable. As the possible adverse consequences of carelessness increase in seriousness, so will a lesser degree of likelihood of occurrence suffice to satisfy the test of reasonable foreseeability. (my emphasis). In that case the police authorities had entrusted a gun to an officer who was still on probation and had shown signs of instability and unreliability. As Lord Nicholls explained in para 32, loaded hand guns are dangerous weapons and the serious risks if a gun is handled carelessly are obvious. On the other hand the precautionary steps required of a careful person are unlikely to be particularly burdensome. Where such an article is handed over, the class of persons to whom the duty of care is owed is wide and the standard of care required is high.

On this basis, foreseeability is nuanced. If great damage is likely to be caused by the eventuation of a risk then it is foreseeable in circumstances where it would not be held to be foreseeable if the damage caused by its eventuation is likely to be minimal.

116. However, Lord Hope in Mitchell also drew attention to the observations of Lord Goff in Smith when considering the scope to which liability attaches to a defendant (in this case the Defendant) for failing to take precautions against the wrongdoing of a third party (in this case Mr Ashworth). Lord Goff had said;

"I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed"

It will be seen that in these circumstances the possibility of wrongdoing does not need to be high before liability is imposed.

117. The position with regard to when a risk is foreseeable in law therefore is not without its complications. In this case those complications are enhanced by the fact that the reality was one thing, namely that the Claimant was in a relationship with DA and the state of affairs as Mrs Maguire believed it to be, namely that they were not.
118. However, Mr Browne draws attention to other factors that militate against a finding of a duty of care connected with the second factor in Caparo namely proximity. He points out that the observations of Lord Goff are premised on the fact that there is a duty created by the relationship between the parties and foreseeability only informs as to its scope. This is after all Lord Hope's analysis in Mitchell as to the interplay between foreseeability and proximity. At paragraph 16 of his opinion he says;

"The context is therefore quite different from the case where a person is injured in the course of his employment or in a road traffic accident. In cases of that kind it can be taken for granted that the employer owes a duty of care to the person who is in his employment or that a duty is owed to other road users by the driver of a vehicle which causes an accident. If commonplace situations of that kind had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable. (my emphasis).

119. In fact as a general principle in any event the law does not usually impose a positive duty on a person to protect others. As Lord Keith of Kinkel put it in Yuen Kun Yeu v AG of Hong Kong 1989 AC175, notwithstanding that harm is foreseeable no liability in negligence arises

"on the part of one who sees another about to walk off a cliff with his head in the air and forbears to shout"

120. In the specific context of this case it is also right to say, on the authority of Smith^[6], that the common law does not impose a duty to prevent a person being harmed by a criminal act of a third party based simply upon foreseeability.
121. The rule that the Defendant is not liable for omissions is clearly not an immutable principle of law but Mr Browne argues that the jurisprudence that extends it does not assist the Claimant here. First let me consider when the general rule that a person is not liable for his omissions is abrogated.

a) Where the Defendant creates the source of danger.

Examples of that are Haynes v Harwood [1935] 1 KB 146, where a van drawn by horses in a crowded street was left unattended and bolted when a boy threw a stone at them; Stansbie v Troman [1948] 2 KB 48, where a decorator who was working alone in a house went out leaving it unlocked and it was entered by a thief while he was away; W v Essex County Council [2001] 2 AC 592, where the parents of an adopted child had received assurances from the council that they would not be allocated a child who was known to be, or suspected of being, a sexual abuser; R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, where a prisoner was placed in a cell with another prisoner with a history of violence who perpetrated a racist attack on him from which he died; Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 where the police issued a gun to an unstable and unreliable officer.

b) Where the third party who causes damage was under the supervision or control of the Defendant, as in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 where Borstal boys who escaped from the island and damaged the plaintiff's yacht were under the control and supervision of the officers who had retired to bed and left the boys to their own devices.

In that case Lord Diplock said at page 1070 that the courts would be exceeding their function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from custody owed to a wider category of members of the public than those whose property was exposed to

"an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken".

c) Where there is a basis for saying that the Defendant had assumed a responsibility to advise the Claimant of the steps that they were taking, or in some other way had induced the Claimant to rely on them to do so. As Lord Hope says in Mitchell at paragraph 29

"It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship".

He went on to say

"I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk."

122. There is a further general principle upon which Mr Browne relies which concerns the liability at common law that can be imposed on a public body performing its statutory functions. In Stovin v Wise [1996] AC 923 (a case in which a highway authority were held not to have a duty of care to a person injured on a road for which the Defendant was responsible and which had been laid out badly) Lord Hoffmann said that it is one thing for a public authority to provide a service at the public expense, and quite another to require the public to pay compensation when a failure to provide the service has resulted in a loss. There would, he said, have to be exceptional grounds for a court to hold that the policy of a statute required compensation to be paid because a power was not exercised.
123. In Gorringe v Calderdale MDC [2004] 1 WLR 1057 Lord Hoffmann (at paragraphs 31 and 32) went on to say that he found it difficult to imagine a case in which a common law duty could be founded simply upon the failure (however irrational) to provide some benefit which a public authority has a public duty to provide.
124. Mr Browne in his final written submissions has alluded to many other cases in support of the contention that the courts will not impose a common law duty of care simply on the back of a statutory obligation on a public authority to provide a service.
125. In Yuen Kun Yeu v Attorney-General of Hong Kong to which I have already referred the court held that The Commissioner for Deposit Taking Companies with whom a deposit taker in Hong Kong had to register was not liable in negligent misrepresentation (that the deposit taker was credit worthy) to savers who lost money when the registered deposit taker went into liquidation because there was no special responsibility imposed on the Commissioner towards individual potential investors. The same outcome (that no duty of care was owed by financial regulators towards investors) was reached in Davis v Radcliffe [1990] 1 WLR 821
126. Similarly in Murphy v Brentwood District Council [1991] AC 398 the House of Lords held that there was no duty of care owed by the local authority to the owner of a house with defective foundations notwithstanding that the local authority passed the plans.
127. In W v. Home Office heard in the Court of Appeal on 19 February 1997 the question was whether the Home Secretary or an immigration officer owed a duty of care to an individual who was detained under the authority of such officer under the Immigration Act 1971 when making a decision under that Act whether to release that individual from detention and when taking the steps which are required in order to reach that decision.
128. Lord Woolf MR held that;

"The mere existence of a relationship brought about by one party exercising a statutory power vis-a-vis another is not sufficient to found proximity on its own"

129. He went on to cite Lord Browne- Wilkinson in W v Bedforshire CC [1995] 2AC 633 who said;

"In my judgement the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient"

Lord Browne Wilkinson went on to say in the Bedfordshire CC case

"A common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance …. of ….. statutory duties"

130. In W v Bedfordshire CC Lord Woolf also refers to Lord Hoffmann's observations in Stovin

"There can be no liability in respect of anything done within the ambit of a discretion conferred by statute"

And he refers to Lord Browne –Wilkinson observations in the same case;

"It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of its discretion conferred by statute, the first requirement is to show that the decision is outside the ambit of the discretion altogether, if it was not a local authority cannot itself be in breach of any duty of care owed to the plaintiff"

131. What Lord Woolf goes on to say in paragraph 5 of his judgment in W is also instructive;

"It is less likely that a duty of care will be imposed on a person exercising his public duty i.e. even where the statutory duty is being implemented if;

a. a potential conflict could arise between carrying out a public duty and acting defensively for fear of an action in negligence being brought

b. where the category of public servant is one similar to the police or CPS as considered in Hill v Chief Constable of West Yorkshire [1989] 1AC 53 and Elguzouli v the Commissioner of the Metropolis [1995] QB 335 and where

i) the general sense of public duty of such servants is unlikely to be appreciably reinforced by the imposition of liability

ii) the recognition of the existence of a cause of action even in quite limited circumstances would be likely to lead to the bringing of a substantial number of cases and a diversion of the public servants concerned away from their duties contrary to the general public's interest and

iii) where there are other private law remedies available if there is a deliberate abuse of power and public remedies available to challenge decisions"

132. In Mitchell to which I have already referred on this issue Lord Hope remarked that;

"As in the case of the police, it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities".

133. Furthermore, Mr Browne argues that as a general principle the process by which a decision maker gathers evidence and comes to its decision cannot be the subject of a negligence action.
134. W v The Home Office is also authority for that. In that case Lord Woolf observed that;

"there could be no question of the Court imposing a duty of care in relation to the asking of questions pursuant to inquiries being carried out. There could not be a clearer example of part of the decision making process involved in the proper exercise of this discretionary power than the actual conducting of the interview, and the asking of questions."

He further observed that:

"The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy."

135. In that case it was held that for immigration officers to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers.
136. In fact the position in W was therefore found not to have changed since the case of Everett v Griffiths [1920] 3KB 163 in which Lord Moulton said

"If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision"

137. In Dixon v. Secretary of State for the Home Office the Court of Appeal considered the question of whether the Home Office owed any duty of care to a prisoner where errors were made by the Home Office in preparing the "dossier" which was placed before the Parole Board so that a recommendation could be made as to the suitabilty of a prisoner for parole.
138. Following W v. The Home Office the Court of Appeal found that no duty of care existed. Even though the "dossier" did not contain information it should have contained and contained information it should not have contained, in preparing the dossier the Home Office were doing no more than performing its powers under the statutory framework. That could not amount to an assumption of responsibility to the prisoner.
139. In effect, there was no sufficient proximity between the prisoner and the Home Office and it would not be fair, just or reasonable to impose a duty of care upon the Home Office.
140. In Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 the Court of Appeal held that

"The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care."

141. It has to be said that the Court did not exclude the possibility of a common law duty of care arising. At paragraphs 40 and 41 the Court concluded that,

"sufficiently compelling special circumstances are required,"

and that such circumstances would arise where;

"public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care."

142. However the Court of Appeal was clear (at paragraph 42) that;

"..where action is taken by an authority acting under statutory powers designed for the protection of a particular class of persons, the authority will not owe a common law duty of care to others whose interests might be adversely affected by the exercise of the power. The imposition of a duty of care might inhibit the exercise of the statutory power and be potentially adverse to the class of person it was designed to benefit or protect, thereby putting at risk, the statutory purpose."

143. Mr Copnall does not address specifically the principle that a common law duty is not generally imposed on the back of a statutory duty and nor does he deal with the principles enunciated in Everett and followed consistently thereafter. He does however have something to say about Mr Browne's contention that this is a case of omission and therefore nonfeasance rather than misfeasance.
144. It will be recalled that I recognise in paragraphs 119 and 120 above that the law does not usually impose a positive duty on a person to protect others or indeed impose a duty to prevent a person being harmed by a criminal act of a third part based simply upon foreseeability.
145. Mr Copnall argues that failing to investigate properly is not an omission in the sense that would absolve the Defendant from liability any more than say the failure of a solicitor to advise a client that the land he is about to purchase is landlocked would not attract liability on the basis that it is a failure to act non negligently rather than a positive act of negligence. In the latter case clearly the solicitor is liable under the principle set out in paragraph 121c) above even if what he has failed to do is characterised as nonfeasance rather than misfeasance. The difficulty for the Claimant is that, on the basis of the authorities just cited, the Defendant cannot be taken to have assumed responsibility for the Claimant merely because it has a statutory duty to exercise its functions while having regard to the aim of protecting the public.
146. Mr Copnall also draws attention to cases that he contends support the view that in this case a common law duty of care does exist. He does so in support of his contention that it is fair, just and reasonable to impose such a duty and there are no public policy decisions that prevent it.
147. First he cites Smith v CC Sussex sub nom CC of Herts v Van Colle [2009] AC225. That was a case where the issue was whether civil redress could be obtained by the Claimant in circumstances where the police are alerted to a threat that an assailant may inflict violence on the Claimant and they take no action to prevent that occurrence and the assailant does in fact go on to hurt the Claimant. In that case the House of Lords held that there was no liability on the police in such circumstances. Mr Copnall indicates in paragraph 16 of his skeleton argument that that decision was reached on public policy grounds because a finding for the Claimant would lead to defensive policing, be a significant drain on resources and impede the ability of the police to work. He cites it because the decision in the Lords was not unanimous and at least two of the Judges in the majority reached their decision only with reluctance and hesitation. It has to be said however that the basis upon which their Lordships eventually found for the police would apply equally well to the Defendant.
148. He also cited the New Zealand case of Couch v AG [2009] NZSC 45. This was a successful appeal against a strike-out of the Particulars of Claim. Its facts are very close to those of this case. The claim arose from a robbery, committed by a parolee, at the Claimant's place of work.
149. The Claimants, who were the Personal Representatives of people killed in the robbery and also those who had been injured in the robbery, claimed damages in negligence for the alleged failure of the probation service to exercise reasonable care in the supervision of the offender, who was on licence after release from a prison sentence for aggravated robbery.
150. The victims were employed at a club where the attacker had been allowed by the probation service to obtain work experience without the knowledge of the employer and his fellow employees about his background.
151. The Supreme Court of New Zealand allowed an appeal by the claimant from the decision of the Court of Appeal that the claim should be struck out. Its decision was unanimous but there were differences as to the criteria for establishing a duty of care.
152. Mr Copnall asserts that the scope of duty required in Mrs Crouch's claim is far wider than that required in the present claim. Because, unlike the Claimant, Mrs Crouch had not been identified to the probation service as a potential victim, prior to the incident; and the claim was based on a general failure of supervision rather than a specific failure to properly investigate a reported breach of licence.
153. He also makes the point that essentially, having analysed the development of the common law authorities since Home Office v Dorset Yacht and specifically considering whether the position of the probation service was more akin to that of the prison service (which owes a duty), or the police (which does not) the court held it to be arguable that it was the former.
154. Both observations may well be true but it is equally true that the Crouch case did not determine whether in the circumstances the Probation Service had a duty of care to the Claimants. The court was concerned simply with whether the argument that there was such a duty was sufficiently arguable to survive an application to strike out the Particulars of Claim. In fact JR was subjected to a similar application to strike out and simply succeeded to the same degree.
155. Mr Browne has himself devoted much time to an analysis of Crouch. I can really do no better than to reproduce what he states in paragraph 112 and 113 of his final submissions;
156. The reasoning of the majority (Blanchard, Tipping and McGrath JJ) was given by Tipping J. He took as his starting point the well-known observation of Dixon J in Smith v Leurs (1945) 70 CLR 256, 262 that it is exceptional to find a duty in law to control another's actions to prevent harm to strangers, but that special relations may be the source of a duty of this nature. Tipping J noted that the special relations to which Dixon J referred were between the defendant and the wrongdoer, but there had additionally to be a special relationship between the defendant and the claimant - special in the sense that there was sufficient proximity between the parties to make it fair, just and reasonable, subject to matters of policy, to impose the duty of care in issue (para 85)....my emphasis)
157. Tipping J concluded that the power of the probation board over the wrongdoer's employment was arguably sufficient to establish the necessary relationship between the defendant and the wrongdoer, by analogy with the Dorset Yacht case. As to the relationship between the defendant and the claimant, the necessary proximity criterion would be satisfied if she could show (as was arguable on the very particular facts of that case) that she, as an individual or a member of an identifiable and sufficiently delineated class, was the subject of a distinct and special risk of suffering harm. The necessary risk must be distinct in the sense of being clearly apparent, and it must be special in the sense that the plaintiff's individual circumstances, or membership of the necessary class, rendered her particularly vulnerable (para 112). If the requisite proximity was established, Tipping J said that it would be necessary to address finally the question of policy, but that should be done when all the facts had been examined (para 130).
158. I would only observe that the passages cited do throw further light on the interplay between the various elements in the 3 stage test cited in Caparo. It will be seen by reference to the passage that I have underlined that Tipping J took the view that the issue of whether the imposition of the duty of care was fair, just and reasonable was informed by questions of proximity.
159. Mr Copnall also referred me to Swann v State of South Australia [1994] 64 SASR 532, a decision of the Supreme Court of South Australia. The facts are similar to this case in that a parole board had accepted the word of the offender (whose index offences were sexual and against children) and failed to direct itself to obtain objective evidence of whether the reported breach of parole conditions had occurred, thereby allowing the offender to sexually assault the Claimant (a child).
160. This too was merely an application to strike out the claim as disclosing no cause of action so it is really of limited value. The court found that the parole board did not owe a general duty to the public, but that it was arguable that a duty of care may be established if parole officers took no action after being made aware that a particular group of children were at risk from the parolee following upon an apparent breach of parole conditions.
161. In this case the Claimant alleges that she was identified by DR in the January 21 conversation as being specifically at risk. Of course the Defendant in this case was informed then that the terms of the parole had been breached but then almost immediately told that they had not and that the Claimant was therefore not at risk.
162. I turn in more detail to the third limb of the Caparo test namely whether it is just, fair and reasonable to impose a duty of care. I am aware that that issue has been addressed by what I have already said. The fact that that is so may well indicate the interdependence that exists between the 3 stages and particularly perhaps between proximity and reasonableness^[7].
163. Mr Copnall points out in paragraph 11 of his skeleton argument that the circumstances in which it is just and reasonable to impose such a duty on public authorities has been the subject of repeated consideration by the House of Lords in recent years. This is because the question is highly fact sensitive and not amenable to the laying down of general principles. I have of course already referred to many of the cases where the question of the duty of care of a public authority has been considered.
164. One case that I have not yet referred to but which Mr Copnall does in Paragraph 11 of his skeleton argument is X (Minors) v Bedfordshire. It is not a case within the authorities bundle and I was not given a reference for it but Mr Copnall cites the following passages;

"[counsel] invited your Lordships to lay down the general principles applicable in determining the circumstances in which the law would impose a common law duty of care arising from the exercise of statutory powers or duties. I have no doubt that, if possible, this would be most desirable. But I have found it quite impossible either to detect such principles in the wide range of authorities and academic writings to which we were referred or to devise any such principle de novo. The truth of the mater is that statutory duties now exist over such wide range of diverse activities and take so many different forms that no one principle is capable of being formulated applicable to all cases."

And

"..the courts should proceed with great care before holding liable in negligence those who have been charged by parliament with the task of protecting society from the wrongdoings of others"This latter passage is of course more useful to the Defendant than the Claimant.

165. Mr Copnall argues that whilst no one principle emerges from the authorities there are various factors which the courts have identified as potentially relevant to the issue of whether special circumstances exist that may give rise to a duty of care on the basis that such a duty is just, fair and reasonable.
166. These are usefully summarised in Desmond v Chief Constable of Notts to which I have already referred from paragraph 140 above. Before turning to that summary I point out that in that case the Court of Appeal concluded that

"sufficiently compelling special circumstances are required,(to found a duty of care)"

and felt that such circumstances would arise where

"public authorities have actually done acts or entered into relationships or undertaken responsibilities such that they are taken to have assumed responsibility to a claimant so as to give rise to a common law duty of care."

167. At paragraph 42 of the judgment the court stated:

"..where action is taken by an authority acting under statutory powers designed for the protection of a particular class of persons, the authority will not owe a common law duty of care to others whose interests might be adversely affected by the exercise of the power. The imposition of a duty of care might inhibit the exercise of the statutory power and be potentially adverse to the class of person it was designed to benefit or protect, thereby putting at risk, the statutory purpose."

168. Having said that, the summary to which I refer from paragraph 140 indicated that the factors to be taken into account in deciding whether there were special circumstances giving rise to a duty of care included;

"… the subject matter of the statute and the intended purpose of the statutory duty or power: whether a concurrent private law duty might inhibit the proper and expeditious discharge of the statutory functions; discretionary decisions to judicial inquiry; the ability of the claimant to protect himself; and the presence or absence of a particular reason why the claimant was relying or dependent on the authority. If there is a reliance, it may easily lead to the conclusion that the authority can fairly be taken to have assumed responsibility to act in a particular way. But reliance alone is usually not enough. Some statutory duties or powers are less susceptible to a concurrent common law duty than others. The law does not favour blanket immunity"

169. In this case it cannot be said that the Claimant placed reliance on the Defendant certainly before May 2010 which is the date that I have found that she first learned that DA was on parole. Even then, it is not clear whether she appreciated that this put him under the supervision of the Defendant.
170. In any event, in Desmond it is also stated that;

"The common law should not impose a concurrent duty which is inconsistent, or may be in conflict with, the statutory framework. If the policy of the statute is not to create a statutory liability to pay compensation, the same policy should also ordinarily exclude the existence of a common law duty of care."

171. Nowhere in the Criminal Justice Act 2000 or the Offender Management Act 2007 which impose on the Defendant the obligation to supervise licensees having regard (amongst other things) to the need to protect the public does it state that that obligation gives rise to a common law duty of care and/or obligation to pay damages/compensation to someone affected by the negligent exercise of a statutory power under either Act.
172. In Barrett v Enfield London Borough Council [2001] 2 AC 550, 559 Lord Browne-Wilkinson said:

"In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered."

173. Mr Browne argues that the test therefore includes policy considerations and that those militate against a finding that the Defendant owes a duty of care in respect of harm caused by a parolee even if caused by an inadequate investigation into the behaviour of the parolee while under its supervision.
174. There is one final principle of law that I need to record. In developing case law in this area the court must adopt an incremental approach rather than by taking giant steps. As Mr Browne put it in paragraph 57 of his skeleton argument;

"The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account".

Conclusions as to duty of care to the Claimant.

175. Paragraphs 64 to 68 of Mr Copnall's skeleton argument clearly have at least one eye on the criteria identified in Desmond in support of the contention that there are special circumstances here that make it is just, fair and reasonable to impose a duty. It is as well to reproduce them verbatim;

64 Resource implications.

a. The Defendant contends that imposing the duty would have "very significant adverse resource implications"

b. The Defendant has adduced no evidence to this effect. In particular:

i. The Defendant, in fact, investigates all credible allegations of breach of licence;

ii. When it investigates, it attempts to do so with reasonable care;

iii. Where it identifies a risk to an individual, it devotes (significant) resources to protecting that individual (as illustrated in the present case by the great care it took to protect DR);

iv. Had it believed that DA was in a relationship with the Claimant, it would have devoted resources to protecting her;

v. There was no suggestion from the Defendant's witnesses that the imposition of the duty would have made one iota of difference to the actions that they took in the present case (or would take in other similar situations in the future).

vi. This contention is wholly unsupported and utterly groundless.

65. Immediate recall

a. The Defendant contends that if the duty were imposed, the Defendant "would likely have to exercise (its) discretion to immediately recall.." and this could be exploited by those with malicious intent, lead to an increase in the prison population and to claims by those "improperly" recalled.

b. The Defendant has adduced no evidence in support of this;

c. If malicious reports are made, there nothing to suggests that are anything but a rarity;

d. It is fanciful to suggest that those who might be tempted to make a malicious report will be aware of or influenced by the existence or absence of the legal duty contended for;

e. The duty is not absolute – it is a duty to act reasonably. It would be no more reasonable (without proper evidence) to assume an offender was lying (and therefore requiring recall) than to assume he was being honest (as happened in the present case). The purpose of an investigation (conducted with reasonable care) is to distinguish between malicious and accurate reports of breach. Recall would be requested only when a breach was established by a (reasonably careful) investigation.

f. This contention is unsupported by evidence and groundless.

66. The relationship between offender and probation officer

a. The Defendant contends that imposing the duty would diminish the "relationship of trust" between offender and manager and move the focus from rehabilitation to investigation.

b. The Defendant has adduced no evidence in support of this;

c. In particular, there was absolutely no suggestion that the care exercised by the Defendant in investigating was in any way limited by a fear of undermining trust;

d. A suggestion that less care should be taken in investigation for fear of diminishing trust is preposterous at best and dangerous at worst:

e. A relationship of "trust" is valuable when founded on honesty, it is positively dangerous when misplaced and founded on deception;

f. An investigation which identifies deceit will diminish the trust invested by the Defendant in an offender, and rightly so;

g. An offender who is seeking to deceive the Defendant will not "trust" his manager less because she is investigating. However, he might be discouraged from attempting to deceive, if he knows that his deception will be carefully investigated. If he is discouraged, there will be less deceit; if there is less deceit there will be more trust.

67. The Claimant's ability to "protect herself"

a. This suggestion was always unattractive at best and is now entirely unsustainable in the light of the evidence at trial;

b. As soon as the Claimant was aware that DA had murdered his former partner, she did seek to "protect herself" by seeking the assistance of the police;

c. It is self evident, and Ms McGuire accepted, that the Claimant was hampered in her ability to protect herself because she did not know Ashworth's history;

d. Mr Voakes made clear that DA would not have been permitted to pursue an intimate relationship with the Claimant without her being made aware of his history (because of the risk that posed to her).

68. In conclusion:

Requiring the Defendant to take reasonable care in the (narrow) circumstances of this case is fair, just and reasonable. A finding to the contrary would strike the public as surprising, if not astonishing

176. On the authority of the passages in Mitchell and Smith to which I refer in paragraphs 114, 115 and 116 above I am satisfied that harm to the Claimant was foreseeable if an investigation was not properly conducted. This is so even though I recognise that in fact there are two steps here. First that it has to be foreseeable that DA was lying when he said he was not in a relationship with the Claimant and secondly, it had to be foreseeable that if he was in such a relationship she may be caused harm. It seems to me that if one adopts the reasoning of Lord Hope in Mitchell then the adverse consequences of a careless investigation were more at the serious end of the spectrum rather than the trivial end. I remind myself that Mrs Maguire felt that a woman in a relationship with DA was at medium risk even when the relationship was ostensibly going well. In addition if one adopts the reasoning of Lord Goff in Mitchell and cited at paragraph 116 above the bar set for the Claimant is not high.
177. The difficulty so far as the Claimant is concerned is that in terms of proximity and fairness, justice and reasonableness the jurisprudence in my view is simply not with her. Even before one gets to the issue of fairness and reasonableness it seems to me that Mr Copnall and the Claimant have the considerable difficulty posed by the principles set out in the case law to which I have referred.
178. Leaving aside the issue of whether what the Claimant complains about is misfeasance or nonfeasance by the Defendant, there are the principles enunciated in Stovin, Gorringe, Desmond, Yuen Kun Yeu, Murphy, W v Home Office, Dixon and W v Bedfordshire (to name but some) to the effect that a common law duty does not generally arise on the back of a statutory duty and will not arise on the back of a statutory duty

"if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance of statutory duties"^[8]

179. If that in itself is not an insuperable hurdle for the Claimant then she has the obstacle caused by the principle that, as Lord Woolf put it in W v Home Office,

"There can be no liability in respect of anything done within the ambit of a discretion conferred by statute"

180. In addition I refer to the observations of Lord Woolf in W and Lord Hope in Mitchell and the court in Everett, Dixon and Desmond all of which I cite in paragraphs 131, 134, 136, 137, 138, 141, and 142 above.
181. In my judgment these principles present an insuperable burden on the Claimant but it is also true that all those cases are also relevant to a greater or lesser degree to the question of fairness, reasonableness and justice if only because it seems to me that the issue of proximity feeds into that question.
182. I turn therefore to the issue of whether it is fair, just and reasonable to impose a duty on the Defendant. Despite Mr Copnall's arguments that I have set out above and his contention that a finding of a duty is justified on the specific facts of this case and that all the Claimant is seeking is a finding that recognises that in this particular case the Service simply did not do its job of investigating properly, I am not persuaded that it would be fair, just or reasonable to impose a duty on the facts of this case.
183. In my judgment the scales that Lord Browne-Wilkinson referred to in Barrett and to which I refer at paragraph 170 above fall firmly in favour of the conclusion that the detriment to the public in finding a duty outweighs the loss to the Claimant in not having a cause of action.
184. Were I to find otherwise then I agree with Mr Browne that it is likely to lead to the defensive approach to their functions by the Service which is referred to by Lord Woolf in W v Home Office and to which I refer in paragraph 131 above.
185. I note that Mr Browne sets out further possible consequences of a finding that the imposition of a duty is fair from paragraph 145 of his closing submissions. It is predominantly those with which Mr Copnall deals in that part of his submissions that I have reproduced above. However, even if Mr Copnall is right that none of those issues raised by Mr Browne stands up to scrutiny nevertheless, in my judgment, imposing a duty would run counter to the observations of Lord Woolf in W v Home Office
186. I have little doubt for example that the imposition of such a duty is likely to change the nature of the relationship between the Service and the offender which will impede one of the stated aims of the legislation which is to supervise offenders having regard to aims that include the rehabilitation of the offender.
187. It is clear that reliance is an important ingredient in the special circumstances that may make the imposition of a duty a fair, just and reasonable one. There is no specific reliance by the Claimant in this case in the sense that she was not told by the Service that they would investigate things thoroughly with a view to protecting her nor was there any conduct by the Defendant that could have given her that impression. She was not aware that DA had any relationship with the Service until May and even then it is unclear whether she appreciated that his liberty was subject to the Service's supervision.
188. The claim that she is entitled to rely on the Service to investigate properly is based on the proposition that the Service had been told specifically by DR that she had been told by the Claimant that the Claimant was in a sexual relationship with DA. As I have said, in the light of the fact that it was DR and not the Claimant who told the Service this and then DR retracted it, in my view that initial representation by DR is not enough to turn the scales in favour of imposing a duty on grounds of fairness and reasonableness in the circumstances of this case where there is no evidence that the statutory duties imposed on the Service were intended to also create a common law duty. In any event, I remind myself that whatever the pleadings say whatever the Claimant may have told DR in the telephone conversation they had on 21 January, it was DR's oral evidence that she only told Mrs Maguire that DA may be having a relationship with the Claimant and that is certainly how the conversation is reported by Mrs Maguire in her contemporaneous records^[9].
189. I do not overlook Crouch or Swann but I derive little assistance from them. It is not a question of whether duty of care is sufficiently arguable to survive an application to strike out. It is a question of whether the arguments that support the contention that a duty of care exists are, in the end, sufficiently convincing. In my view they are not.
190. In the circumstances I find that the Defendant did not owe the Claimant a duty of care to investigate the initial allegations in a different, more thorough, manner.
191. In the event that it is relevant, nor do I find that the Defendant owed a duty of care to warn the Claimant of DA's background.
192. I reach this last conclusion on the basis that their decision not to do so had logic and was informed by the limitations on the right to disclose DA's offending history and that, when all is said and done, if one turns back to the observations of Lord Woolf in W v Home Office and those of Lord Moulton in Everett which I have cited above then it is clear that an opposite finding would run wholly counter to the current law.
193. I propose therefore to dismiss the claim.

If there was a duty was there a breach?

194. In view of my finding that there is no duty it is unnecessary to consider this but I do so briefly in the event that I am wrong in finding that there is no duty.
195. Let me say at the outset that I would not have found that the Defendant was in breach of any duty.
196. Mr Copnall argues that it was not open to Mrs Maguire or Mr Voakes to conclude that DA had not entered into a relationship with the Claimant without further investigations. I refer to the point he makes and which I record in paragraph 53 above and elsewhere to the effect that Mrs Maguire and Mr Voakes were wrong to adopt the position that a retraction by DR was significant when in fact that did not affect the conceded fact that they knew that the Claimant herself had said to DR that she (the Claimant) was having an affair and that any retraction by DR should not have been seen as a retraction by the Claimant of her allegation.
197. Mr Browne makes the point that the "concession" in the Amended Defence that Mrs Maguire knew that the Claimant had asserted in terms that she and DA were intimately linked has to be looked at in context and against the background that whatever is said by Mrs Maguire in the Report for Review of Re- Release, to which I have referred in paragraph 52 above and which was dated August 2010, the contemporaneous evidence of what Mrs Maguire actually knew in the January while investigations were continuing was that DR had merely concluded thatDA and the Claimant were in a physical relationship. He refers me to the note of the meeting I refer to in paragraph 58 above and the CRAMS Log at 2/248 both of which suggest that actually at the time all Mrs Maguire knew was that DR had her suspicions of a romantic attachment between the Claimant and DA. Specifically those entries do not suggest that DR told Mrs Maguire that the Claimant had told her in terms that she was in such a relationship.
198. As regards context, Mr Browne points out that paragraph 7 of the Re-Amended Particulars of Claim which paragraph 12d of the Amended Defence addresses only asserts that on 21 January Mrs Maguire was told by DR that DA had not been living with her for 3 weeks and was staying in a property owned by the Claimant and that she "feels" that DA "could be" having an affair with the Claimant and paragraph 7(iv) merely pleads that in the course of the interview that day Mrs Maguire did not get either a denial of, or an explanation, for that account.
199. Nevertheless, Mr Copnall argues that the pleading defines the parameters of the case and in the pleadings there is a concession that Mrs Maguire knew that the Claimant had told DR that she was having an affair with DA because DR and DA later told her that the Claimant was in fact making that up to spite DR.
200. I accept that if, for example, the Claimant had told Mrs Maguire that she was in a relationship with DA then it would have been insufficient for the Defendant to accept that that was retracted merely on the basis that DR retracted her allegation that the Claimant and DA were in a relationship.
201. The fact is though that of course nobody from the Service had any contact with the Claimant at this point. In so far as Mrs Maguire had been told by DR that the Claimant had told DR that she was in a sexual relationship with DA, the fact is that very shortly thereafter DR retracted the allegation completely and said that what she had initially told Mrs Maguire was a fabrication.
202. In my judgment it is not unreasonable for the Service to conclude that when DR said that she had fabricated her accusations then that included any intimation to Mrs Maguire that she had been told by the Claimant in terms that the Claimant was sexually involved with DA. This is not, in my judgment, a case where DR is seen by the Service as retracting an admission that they knew had been made by the Claimant. It is a case simply where at best (and assuming that whatever the true position is, the Defendant is bound by its "concession" in the Amended Defence) DR has told them that the Claimant admitted that she was in a relationship and then DR has retracted that.
203. It is difficult to see what more they could have done in the course of their investigation other than to contact the Claimant to ask if she was involved with DA.
204. Mr Copnall argues that the Service never got to the point of even considering the appropriateness of disclosure because Mrs Maguire and Mr Voakes had made up their minds that there was no cause for concern regarding Mr Ashworth on the basis of their own investigations and the conduct/relationship of DR and DA generally and in the period during which he was in the Hostel. He asks me to make a finding as to whether in fact disclosure was considered and rejected as being unlawful, disproportionate or unnecessary or was not considered at all.
205. I am not persuaded that it is strictly necessary to make that finding. First because the outcome of this case is not affected one way or the other in light of my finding that no duty exists but secondly because even if no consideration was given to the question of whether disclosure should take place, if consideration had been given to that question then it is more probable than not that disclosure would have been seen by the Service to be unlawful, disproportionate or unnecessary in the circumstances of this case. In my judgment, it was not negligent for the Service to take that view. Thus, even if disclosure was not considered but ought to have been, the Claimant would have failed to establish causation.
206. I say that because the limitations on the right to disclose which I have set out earlier are a very important factor and it could not be said in my view that if disclosure were considered it would have been negligent on the part of Mrs Maguire or Mr Voakes to form the view (in the light of the retraction, the fact that DA was in a hostel under curfew for a month, and the positive discussions that Mrs Maguire had subsequently with DR and DA and the matters to which Mr Voakes referred and which I record in paragraph 68 above) that it was not "lawful, proportionate or necessary" to disclose his background to the Claimant in order to fill out the investigation. There is much strength it seems to me in Mr Voakes concept of the "vicious paradox" that I refer to in paragraph 73 above. I should add, as regards the retraction that I do not overlook the point made by Mr Copnall that the retraction was not one that emanated from the Claimant herself but the point is that it was a retraction by DR of her allegations of what the Claimant had told her. This is to be distinguished from the situation where Person A (the Claimant) makes an allegation to Person B (the Service) and then Person C (DR) seeks to withdraw Person A's allegation.
207. If however a finding is necessary on the question of whether in fact the Service got as far as to consider whether disclosure was necessary then the evidence does suggest that it did not. Rather Mrs Maguire formed the view that there was no cause for the sort of concern that would make it necessary to consider whether an outcome to her investigation could only properly be achieved by a consideration of whether an approach involving disclosure needed to be made to the Claimant and/or others.
208. I accept that in her live evidence she said that she felt it was not open to her to seek corroboration from the claimant^[10]. In addition I accept that Mr Voakes's letter of 31 October 2011 (referred to in paragraph 71 above) also suggests in the way it is drafted that the issue of disclosure was considered at the time. I refer to the observation that "it did not seem appropriate for us to contact the third party". The way that is expressed suggests that that was a contemporaneous decision.
209. On the other hand, paragraph 54 of Mrs Maguire's witness statement which was no doubt written at leisure and read carefully, gives the clear impression that, in fact, because of the retraction, she did not explore disclosure. In addition, so far as I am aware there are no records to suggest that disclosure was actually discussed by her with Mr Voakes or others. Mr Voakes live evidence is also instructive. I have recorded the following evidence in answer to a question from Mr Copnall

"I ask Claire (Maguire) if she is satisfied that the original accusation by DR was false. She said she is so we don't undertake any further investigation."

210. As I have said however, this finding does not assist the Claimant because of my conclusion that had disclosure been considered, it was properly open to the Defendant to conclude in the circumstances that disclosure as part of their investigations was not "lawful, proportionate or necessary".
211. For completeness I should record that there was some consideration given in the hearing about whether disclosure to some extent could have been given to MR in the hope that he may have been able to throw some light on the truth about whether DA and the Claimant were in a relationship. The fact is that had he been asked in January he is likely to have said that they were not. This is after all what he told his sister, DR, when she rang him on 21 January.
212. Mr Copnall argues that the investigation was fundamentally substandard. Mrs Maguire had not been trained to conduct an investigation and there was no guidance to which she could refer. He points out that her decision to accept the retraction at "face value" (which is what she says that she did in her report to the Parole Board of 26 August 2010 (D162)) is the "antithesis of an investigation". He also argues that in fact it was DR who concluded that there was no affair and that actually all Mrs Maguire did was accept DR's conclusion without herself undertaking a critical analysis.
213. I do not accept that. Mrs Maguire's oral evidence was that the retraction was not accepted unquestioningly. It was accepted because it had the logic to it that I set out in paragraph 66 above. Thereafter DA was not allowed home but during the following weeks while he was in a hostel the relationship was monitored. As to training, the fact is that she had unlimited access to a very experienced senior member of the team in Mr Voakes to whom she made constant referrals for advice.
214. As to Mr Copnall's contention that Mrs Maguire relied too heavily on the protestations of a known deceiver and manipulator and a woman who had a vested interest in keeping the man she loved out of prison on recall, it is right to say that it was Mrs Maguire's evidence, which I accept, that she formed her own view about whether he was in a relationship with another woman for the reasons already set out and mentioned in paragraph 66 and 68 above as well as elsewhere.
215. In any event it does not seem to me that DR had an unqualified vested interest in keeping DA out of prison. She had such an interest if she believed he was not involved with another woman. It is by no means axiomatic that she would have such an interest if she believed that he was.
216. I do not overlook the point made by Mr Copnall that Mrs Maguire had evidence that even in January DA was not to be believed. I refer to paragraph 34 above in this connection which records her realisation that DA had not told MR about his offending history but, as I have said, I am satisfied that Mrs Maguire did not simply accept DA's assertions but was exercised also be those of DR as well as the considerations pointed out by Mr Voakes recorded at paragraph 68 above.
217. As Mr Browne reminds me, the fact that Mrs Maguire was hoodwinked by DA (if not also by DR) is not the issue. That became clear with the benefit of hindsight which has no place in an assessment of what course of action Mrs Maguire should have taken at the time bearing in mind particularly the restrictions on disclosure.
218. Accordingly, had I needed to, I would have found that, on the facts, there was no breach of a duty of care which would give rise to liability.

Contributory Negligence

219. Obviously this issue is no longer relevant. If it was, because I had found that there was duty of care that the Defendant had breached, then I would merely have repeated the observations that I make in paragraph 100 above.

Final Remarks

220. Finally, and importantly, on the basis of what counsel told me in opening that, albeit this case is in the County Court and, in so far as it identifies general principles, is only of persuasive interest to any other court – and in any event is based on a fact sensitive matrix, nevertheless it is regarded as important and that in those circumstances it may be reported or otherwise may be prayed in aid if the Defendant finds itself in similar proceedings in the future.
221. I have been asked by Mr Copnall if in the circumstances, and bearing in mind the issues, the court would make an order anonymising this judgment, for the protection of the Claimant's mental health and to reflect that fact that DA also prima facie has a right to privacy. Mr Browne did not object to such an order and neither counsel pointed to any principles that may make such an order inappropriate. I have accordingly made that order pursuant to CPR 39.2(4).

I am grateful to counsel for their very able assistance in this matter and their very helpful and erudite skeleton arguments and final submissions.

HHJ Saffman

Note 1   Release on Temporary Licence    [Back]

Note 2   Offender Assessment Report System. It is a comprehensive written assessment in relation to the risk an offender may present to victims of an offence, the public, staff or indeed to the offender himself. It addresses the likelihood of reoffending, motivation to change behaviour to address risk and to what is required to resolve any offence related needs and circumstances. The OASys is the Probation Services own assessment tool. It reviews 13 different areas of relevance such as accommodation, education, employability, relationships, drug/alcohol misuse and it assesses risk using an algorithm that takes all these areas into account.    [Back]

Note 3   Albeit not necessarily in the course of the telephone conversation on 21 January referred to in paragraph 48 or the meeting that subsequently took place on that day.    [Back]

Note 4   Mrs Maguire’s evidence was that she may have known for example that DA was in contact with J and that that may have brought him into contact with the Claimant.    [Back]

Note 5   There was an incident on 4 May at DR’s mother’s house at which the Claimant had turned up unannounced and words had been exchanged but DA and DR voluntarily and readily disclosed that and it was not felt that it gave rise to concern in connection with DA’s conduct on licence.    [Back]

Note 6   Per Lord Goff     [Back]

Note 7   See the observations I make at paragraph 152 above    [Back]

Note 8   See paragraph 127 above    [Back]

Note 9   See paragraph 195 below    [Back]

Note 10   see paragraph 67 above    [Back]