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Mr. Dismore: These amendments cover the issue of deaths in custody caused by gross negligence. In the Joint Committee on Human Rights report on deaths in custody published almost two years ago to the day, the Committee reported that, in prisons and mental health institutions, someone is killed, kills themselves, or dies in questionable circumstances every other day on average. Of course, not in all, but certainly in some of those cases people in custody have died as a result of the gross negligence of the authorities that should have been caring for them.
I mention just two cases to illustrate the point. In 1994, Christopher Edwards, a remand prisoner, was violently killed in his prison cell by a highly dangerous, mentally disordered prisoner with whom he had been made to share his cell. The European Court of Human Rights found that the authorities should have known about the risk to Christopher’s life but failed to pass on the necessary information about the dangerous offender and also failed to screen him properly when he arrived at the prison. They therefore failed in their duty to protect Christopher’s right to life.
In 2000 it happened again in perhaps even worse circumstances. Zahid Mubarek, a young Asian man, was detained in Feltham. He was beaten to death with a table leg by his cell mate who was well known by the Prison Service to be a violent and sometimes racist psychopath. The report of the independent inquiry into the death said that the two should never have been placed in the same cell. It found:
“Had there been effective management from the Governor down, and within the wider prison system, the death could have been prevented”—
language not dissimilar to Lord Justice Sheen’s in the Zeebrugge inquiry. I particularly refer to those two cases, out of all the violent deaths, for good reasons, to which I will refer later. Suffice it to say for now that, in both cases, if this Bill were to apply to deaths in custody, there would at the very least be a case to answer by the Prison Service—and probably the prospect of a successful conviction.
In its 2004 report on deaths in custody, the Joint Committee on Human Rights recommended both consideration of a new offence of causing or allowing the death of a person in state custody; and, of particular relevance today, that an offence of corporate killing should be made applicable to public bodies such as the police, Prison Service and health authorities, to provide adequate protection of the right to life against careless killing by public bodies.
In their response, the Government refused to agree to the individual offence, but said in relation to the corporate killing offence that they
“recognised the importance of accountability where serious management failures lead to death and is committed to producing a draft Bill...the details of our proposals, and the sort of circumstances in which it would apply, will be set out”.
That obviously sounded rather more hopeful to the Committee. However, our Committee's optimism was clearly misplaced. The Bill as drafted does not permit prosecutions for corporate manslaughter against the Prison Service, even in cases such as the two I have referred to, even where it could be shown that the death was caused by gross management failure. The effect of my and others' amendments would be to make such prosecutions possible, where a death in custody has
been caused by gross negligence in the management of the public authority in question.
The issue has been carefully considered by the Select Committee on Home Affairs and the Select Committee on Work and Pensions in their joint report on the draft Bill, and by the Joint Committee on Human Rights for a second time under my chairmanship in its report on the current Bill. All three Committees concluded that that there was no justification for excluding deaths in custody from the scope of the new offence.
So why have the Government failed to include them, given the scale of the problem? The Government have offered two distinct justifications for excluding deaths in custody. First, they say that criminal prosecutions are not necessary in the case of deaths in custody caused by gross negligence, because of the other accountability mechanisms which are already available. Such deaths, they say, are already subject to rigorous independent scrutiny through public inquests before juries and through independent reports capable of ranging widely over management issues. Of course, that argument applies to nearly all deaths that could be the subject of a prosecution under this Bill. There will inevitably be an inquest into such fatalities. Deaths at work inevitably lead to Health and Safety Executive investigations. Rail or other transport deaths are subject to investigations by the specialist inspectorates and often by the police, too, so what is different about deaths in custody?
The answer is the opposite of what the Government claim. Far from wide-ranging independent reports being the norm, if anything, they are the exception, and their establishment is often fiercely resisted by the Government in the first place, as happened in the two cases of Zahid Mubarek and Christopher Edwards, to which I referred earlier.
The independent public inquiry into Zahid Mubarek's death only took place because the Home Secretary was ordered by the House of Lords to hold such an inquiry, under the Human Rights Act 1998. That was more than three and a half years after the death occurred. The family's requests for such an inquiry had been refused by the Home Secretary. Zahid's family had to fight the Home Secretary's denial of their right to know what happened all the way to the House of Lords. There, they eventually obtained a declaration that an independent public investigation of the death had to be held, in order to satisfy the obligation imposed by the right to life in article 2 of the European convention on human rights. The subsequent inquiry finally reported in June 2006, more than six years after Zahid Mubarek's death, in the castigating terms to which I referred earlier.
The House of Lords in the Mubarek case relied heavily on the earlier decision of the European Court of Human Rights in the case of Christopher Edwards. In that case, the Government also refused the family's requests for an independent public inquiry. Then, the family had to fight the case all the way to the European Court of Human Rights to establish, more than seven years after Christopher Edwards' death, that the Government had failed in their duty to ensure that there was an adequate and effective investigation into the death. Even after that, no independent inquiry was ever held into that case.
Moreover, those alternative methods of accountability have proved inadequate to protect people from non-natural deaths in custody. As for the possibility of individual liability for manslaughter, of the cases of deaths in custody known to Inquest from 1991 to August 2006, there was not one conviction for manslaughter in relation to a death in custody, following an inquest verdict of unlawful killing. Therefore the Government's argument that deaths in custody can be distinguished owing to the rigorous investigation of such cases, as compared with all others covered by the Bill, simply does not stand up to scrutiny.
Mr. Sutcliffe: I hope that my hon. Friend would acknowledge the independent nature of Her Majesty’s inspectorates of prisons and of the probation service. I do not think that it is true to say that the Government are kicking and screaming at every opportunity so as not to find out and understand what goes on in terms of deaths in custody. It is not all one-way traffic. I hope that he will recognise that, in the latest legislation, the Government agreed to continue the independence of Her Majesty’s inspectorate of prisons.
Mr. Dismore: On the latter point, I simply say that that happened after a lot of argument and debate. It was not exactly a willing approach on the part of the Government, who had to be dragged kicking and screaming to that position. We are talking here not just about ordinary deaths in custody that are investigated in the same way as a factory accident. Not every factory accident would lead to a prosecution for corporate manslaughter. Not every factory accident is the result of gross negligence. Similarly, not every death in custody is the result of gross negligence. The two cases that I referred to probably were, and those two cases are the worst I can think of, where a prisoner was killed by another prisoner in circumstances where the second prisoner was known to be violent and likely to commit such an offence. In both cases, the requests for independent inquiries were refused and were ultimately ordered by the courts. One of those cases occurred when the Conservatives were in power and the other happened under the current Government, so we are talking about Governments of more than one political hue. In relation to neither case does the Government’s argument hold water that all such cases are subject to the kind of rigorous scrutiny that they should be.
Even if the Government are right and there is a stronger approach to such investigations than for other deaths, that would still not answer the key point: no such investigation can have the same deterrent effect as the possibility of criminal conviction—of prosecution. One of the important purposes of the new offence is not merely to establish what happened in the past, but to protect lives by preventing deaths from happening in the future. Ideally, there will never be any prosecutions under the Bill, as it will serve what I consider to be its prime purpose: to prevent avoidable, unnecessary deaths from happening in the first place.
The Government’s second argument is that criminal investigations are disruptive and costly and impose a resources burden on the Crown. But that concern with price belittles the importance of what is at stake. The purpose of the offence is to protect life. As I have said, in any event prosecutions will be possible only in cases
of gross negligence which, even given the scale of the problem, will be a small fraction of cases, so the resource implications cannot be overwhelmingly great. If it is justifiable to impose a burden on private companies by introducing a criminal offence that applies to them in respect of deaths caused by gross negligence, it must equally be justifiable to impose that burden on the Government, especially for deaths in custody.
That exemption would apply, however, not only to prisons run by the Government, but to private custodial corporations. There is even less justification for allowing them to escape liability. Recent concerns over the treatment of children in privately run secure training centres—STCs—particularly after the death of 15-year-old Gareth Myatt in an STC earlier this year, and the findings of the Carlile inquiry into the use of physical restraints, solitary confinement and forcible strip-searching of children, highlight the need for proper accountability for privately run institutions, as well as for publicly funded ones. I suggest that they should also be brought within the ambit of the deaths-in-custody amendments.
Why are the Government proposing this exclusion? I believe that the real reason is that it is the result of horse-trading within the Home Office. The Prison Service was clearly worried about the risk of prosecution, given its poor record, but it was not faced down, nor was it pushed to make improvements in its practices and procedures to ensure that prosecutions could not follow; we might well be able to insert a provision to state that the clause will not come into effect until the Prison Service has had time to get its act together. The Prison Service should get its act together, because if all proper steps to avoid deaths in custody have been taken, there would be no prosecutions. Instead, the Prison Service will be let off the hook, pure and simple. It has even been suggested to me that if these amendments are agreed to, the Government might withdraw the Bill. The Prison Service seems to have more clout with the Government than this House.
It is clear to me that the exclusion of deaths in custody from the scope of the new offence lacks any principled justification. It also exposes the UK to the likelihood of a finding by the European Court of Human Rights that our laws fail to do enough to protect the right to life. As my Committee found, the European convention on human rights requires states to allow for the possibility of criminal prosecution where a death has been caused by a serious management failure in a public body. Unless the Bill is amended to make that possible, it is only a matter of time before another tragic case such as those of Christopher Edwards and Zahid Mubarek leads to condemnation from the Strasbourg court—and more importantly, before such avoidable deaths are inevitably repeated.
8.15 pm
Of the deaths that occur on average every other day in our prisons, mental institutions and custody suites, those that are culpable owing to gross negligence should be subject to this Bill’s provisions, if we are to get the Prison Service and other organisations to treat their duty to such vulnerable people more seriously than they appear to do at present.
Mr. Grieve: As the hon. Member for Hendon (Mr. Dismore) will be aware, the official Opposition and others have signed his amendment No. 3. In addition, we have tabled amendment No. 16. There is a minor difference from the wording of the hon. Gentleman’s amendment, but it clearly states that the Bill should encompass
“the management of a prison, young offenders’ institution, police custody unit, immigration accommodation centre or any other place of lawful detention.”
The hon. Gentleman has clearly explained the arguments in favour of the proposed move, and I do not wish simply to repeat what he has said, but there is one angle that can be looked at in greater detail: the concept of custody. As the word implies, it means entrusting somebody or something to somebody else. Although we often use it in the context of punishment in prison, there are many instances in which it does not imply punishment at all. A person detained on remand may be, and often is, detained for their own protection; that is one of the grounds on which remand can be ordered before trial. In some cases, custody of an individual is required not only for punishment but, for some young people, because of the need to rehabilitate them. That is one of the primary reasons why it is ordered.
If something goes wrong and a person dies while they are in custody, that is a serious matter. Those who have custody of that person might not always be at fault; people do commit suicide, however vigilant individuals are. People might suffer accidents in custody that are not anybody else’s fault. However, as the hon. Gentleman has rightly said, we have ample evidence that many deaths in custody are entirely preventable and are caused in part by neglect or, as in one of the cases he highlighted, because decisions are taken that have an element of deliberation in the attitude of prison officers to those in their charge, which is reprehensible in the extreme. I am thinking in particular of someone who is killed by a fellow inmate in their cell.
Mr. Sutcliffe: I know that the hon. Gentleman and my hon. Friend the Member for Hendon (Mr. Dismore) are making a point about the Mubarek case and the Christopher Edwards case, but the hon. Gentleman said that there was evidence of many such deaths in custody, and I hope that he will share with us how many there have been, because I believe that the vast majority of deaths in custody are suicides and are very often unpreventable.
Mr. Grieve: Let me make my position clear. I believe that the Prison Service does its best in often difficult circumstances and, of course, it often has custody of people who are mentally unstable or who have personality disorders. I know from visiting prisons that that can be an extremely difficult matter. I fully acknowledge that many who commit suicide do so despite a lot of care having been provided to try to prevent that from happening. The two cases cited of people having been killed by fellow inmates are, mercifully, fairly exceptional events—although that does not make them less regrettable. However, there is at least some evidence that even within the provision possible in the prison system there are failures that lead to inmates’ suicides.
Let me make the position clear to the Minister. The Minister has made the point that the test for corporate manslaughter is a high one. Let me read out again the test for establishing corporate manslaughter:
“if the way in which its activities are managed or organised—
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”
When the Prison Service or police officers have an individual in custody, they owe a duty of care to them, and that applies to any organisation that has custody of another human being, yet the Government have decided to craft a deliberate exemption to take a group of people to whom the state owes very particular duties entirely out of that system. In doing so, they have said that it is all right to do that, because if something goes wrong there is searching scrutiny and inquiry.
I acknowledge that there may often be searching scrutiny and inquiry, but that gives rise to a question that the hon. Member for Hendon raised very well. In many industrial accident cases, the Health and Safety Executive goes to great lengths to prepare a voluminous and detailed report, but that does not in itself mean that prosecution of the organisation in question should not take place as well. At the end of the day, the Minister and I differ on this point. If we are to have a corporate manslaughter offence, I cannot think of a good reason why the Prison Service, the police or any other organisation that detains people in lawful custody should be exempt from its provisions.
Mr. Dismore: I asked the Library to do some research on this issue, and it came up with a list of 15 such cases since 1992 that might have fallen within these provisions. Therefore, the average is about one death a year, as opposed to one every other day.
Mr. Grieve: I am very grateful to the hon. Gentleman for that intervention. I do not have the precise figures, but that ties in with my recollection. We are not talking about one or two such cases a decade. There is a consistent pattern of suicide in prison, for which no blame can attach to anybody. [Interruption.] There is no point in the Secretary of State huffing and puffing; he should look carefully at the figures. The key issue is that there is a consistent pattern of instances of suicides in prison that were deemed to have been preventable. However, just because something may have been preventable does not necessarily mean that it should lead to a corporate manslaughter charge. What I am saying is that there can be no philosophical or rational justification for exempting Government Departments from the possibility of culpability in this field, particularly in view of what custody actually is.
Mr. Sutcliffe: I do not want to break the spirit of our discussions, but the hon. Gentleman said that there is evidence of many such cases, whereas my hon. Friend the Member for Hendon said that there have been 15 in the past 15 years. Unfortunately, on average there are 200 deaths a year in prisons, but that is not many in the context of a prison population of 79,000 and the number of people who go through prison. The hon. Gentleman is right to make his points and I understand and agree with what he says about the duty of care, but it is not right to say that there have been many such cases.
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