Escaping Borstal Boys and the Immunity of Office

Abstract

Should the Home Office be liable for damage done by Borstal boys “escaping” from an “open” Borstal? On the other side of the Channel the liability of the state in the case of the near-equivalent “institution publique d'éducation surveillée” has been settled in two exceptionally interesting judgments of the Conseil d'Etat, Thouzellier, 3 February 1956, Rec. 49, and Trouillet, 9 March 1966, Rec. 201, the grounds of which repay study. In England a county court judge had held in 1951 that there was liability (Greenwell v. Prison Commissioners, 101 L.J. 486): the judgment was widely noticed and not appealed against. Now, eighteen years later, in Dorset Yacht Co. Ltd. v. Home Office [1969] 2 W.L.R. 1008 the Home Office, that compulsive defender of prerogative and atavistic privilege, seek to establish as a matter of law that they cannot be liable, however gross the dereliction of duty by the Borstal officers.