4. Memorandum from the Commission
for Racial Equality
INTRODUCTION
Established under the Race Relations Act 1976,
the Commission for Racial Equality has a statutory duty to work
towards the elimination of unlawful racial discrimination and
the promotion of equality of opportunity and good relations between
people of different racial groups.
Following the recommendations of the Stephen
Lawrence Inquiry and representations the Commission itself had
long made[5],
the Act was amended in 2000 both to extend its provisions on unlawful
racial discrimination to cover the operations of the criminal
justice agencies and to establish a duty on such bodies to work
towards the elimination of unlawful racial discrimination and
the promotion of equality of opportunity and good relations between
people from different racial groups.
This later duty to promote race equality lies
upon not only the criminal justice, health service and other agencies
responsible for holding people in custody but also upon the bodies
responsible for inspecting and investigating them, or supervising
those who do.
In the case of all such bodies, the amended
Act requires them to prepare and implement race equality schemes
indicating how these duties will be implemented, how progress
toward these aims will be monitored and how those affected will
be consulted. The pursuit of such work will assist agencies involved
in custodial care and the investigation of deaths in custody in
focusing effectively on their functions, learning lessons from
catastrophic events such as deaths in custody and in recognising
the negative impact such events can have on race relations generally.
BACKGROUND
The experience of the Commission, including
that arising from its conduct of an ongoing formal investigation
under the 1976 Race Relations Act into possible unlawful racial
discrimination by HM Prison Service of England and Wales[6],
is that:
— The impact upon race relations of
controversial deaths in custody involving members of different
ethnic minority communities has been, and continues to be, strongly
negative.
— The perception of wrong doing has
persisted even where public authorities may, upon investigation,
have been shown to have acted correctly, partly because the independence
of the investigation has not been accepted or not been evident.
— When more general failures of practice
linked, directly or indirectly, to race have been inadequately
investigated, left unresolved or have just not been acknowledged
by those responsible, the damage to good race relations has been
significant.
We share the view expressed on these matters
by the Attorney General in his recent Review of the Role and
Practices of the CPS that:
A death in custody takes on added significance
when the person who has died belongs to a group which considers
itself as having had historically strained relationships with
the police and other institutions of the criminal justice system.[7]
As, in the recent past, members of various ethnic
minorities have been significantly over represented at various
times in different aspects of death in custody (for instance,
deaths in police custody excluding deaths arising from police
car chases, deaths from the use of control and restraint procedures
in HM Prison Service establishments or suicide in those establishments),
the Commission has been directly interested in ensuring the full
investigation of such deaths and in seeing established effective
mechanisms to ensure that the lessons learned from such investigations
are properly followed up by improvements in practice.
The Commission has given evidence and published
its views over a number of years in respect of the concerns it
has shared about the issue of deaths in police custody, the significant
over representation of black members of the public in such deaths
and the obvious weaknesses in the investigation machinery involved.
More recently, there has been progress in establishing more independent
means of investigation. The establishment of the Independent Police
Complaints Commission is a further step in a direction that the
Commission welcomes. Progress also appears to have been made in
reducing the previously marked disproportionality in ethnic minority
involvement in such deaths[8].
However, there remain significant areas concern.
The over representation of individuals from particular ethnic
groups in some areas of deaths in custody continues and, while
progress has been made in respect of the responses to deaths in
police custody, those in other areas of custody have not been
the focus for the same institutional arrangements. There is, for
instance, no parallel body to the Police Complaints Authority
or the future IPCC in respect of deaths in the custody of HM Prison
Service.
There are several race equality issues which
arise from all these matters. These include:
— Do the arrangements mean that issues
of possible racial motivation in respect of the actions which
led to or caused the death have been effectively brought out and
considered?[9]
— Do the arrangements enable the race
equality consequences of poor practice and different needs/circumstances
of different ethnic groups among those in custody to be understood
and responded to?
— Do the arrangements properly respond
to the needs and concerns of relatives from ethnic minority communities?[10]
Some of these concerns should be the focus for
the work the various agencies involved should be undertaking as
a result of the Race Relations (Amendment) Act 2000 as suggested
in the Introduction.
In this evidence to the Joint Committee we wish
to drawn the Committee's attention to three matters:
— The need for a primary attention
to be focused upon the use of lessons gained from the investigation
of those deaths which have occurred to prevent any further such
tragedies.
— The urgency of following the better
practice which has been developed in respect of deaths in police
custody with parallel arrangements for other areas of custody.
— The problem faced by relatives when
seeking expert or legal representation.
THE IMPORTANCE
OF ENSURING
THAT GOOD
PRACTICE IN
CUSTODIAL CARE
IS DEVELOPED
AND FOLLOWED
Much of the discussion around Article 2 of the
European Convention of Human Rights has focused on the issues
of how best should investigations be conducted in order to fulfil
the procedural obligation which falls upon the state as a result
of the article[11].
There has been less discussion about the need to ensure that the
lessons learned from individual investigations are then followed
through either by the development of better custodial practice
or by ensuring that measures already agreed upon as part of such
a practice are actually implemented.
While clearly the procedural obligation is necessary
to determine whether or not the state has fulfilled its positive
duty to take reasonable steps to safeguard the lives of those
in its custodial care, the existence of arrangements to ensure
that the lessons learned from investigations are effectively implemented
is fundamental to the actual fulfilment of that duty. The Commission
is concerned that any procedures put in place to conduct investigation
of individual deaths are also capable of examining how the lessons
which should have been learned from one death may not have been
implemented effectively enough to prevent subsequent deaths.
In 2000, the Commission launched a formal investigation
under the Race Relations Act 1976 into, among other matters, the
circumstances leading to the death of Zahid Mubarek who was murdered
while in the custody of HM Prison Service of England and Wales.
The overall investigation has not yet concluded and the Commission
is not in a position at the time of preparing this submission
to discuss all the issues arising from the investigation that
might be relevant to the Joint Committee's deliberations. However,
the report of the investigation in so far as it directly concerned
the murder of Zahid Mubarek has been published[12].
The Commissioners nominated to conduct the investigation
found that the prison authorities failed to follow their own stated
procedures and that these failures created the circumstances in
which a prisoner with a record of violence and known racist views
was able to share a cell with a prisoner from an ethnic minority
who was, therefore, more likely to be a target for assault by
him. In particular, the Commissioners noted that several of the
practice areas concerned procedures which had been laid out in
HM Prison Service Orders or Instructions over a period of many
years. In several instances, the fact that these Orders or Instructions
were not being followed was a matter known to HM Prison Service,
either as a result of published reports by HM Chief Inspector
of Prisons or as a result of the Service's own internal audits.
In addition to the issue as to whether or not
the family of Zahid Mubarek have a right to a public inquiry into
what happened, there is, therefore, also the issue of how such
persistent failures of good practice can be identified and prevented.
It is apparent that, even in areas of custody—such
as the police—where some institutional arrangements have
existed with a responsibility to give attention to such matters,
persistency of bad practice is hard to shift.
The review by the Police Complaints Authority
of police shootings under section 79(1) of the Police Act 1996
published by the Authority in January 2003 found that
Although each incident in which a member of the
public is shot by an armed police officer is the subject of a
detailed and thorough investigation, systematic analysis across
time and over incidents is limited.[13]
It noted that "there has been one important
UK shootings review prior to this one", the "Burrows
Report", covering shootings between 1991 and 1993. The authors
added:
It is beyond the scope of the current review
to comment on the scope of the recommendations arising from the
Burrows Report. However, it is regrettable that there is no formal
mechanism for assessing their implementation and many of the findings
presented below would suggest that implementation has not been
universal.[14]
The concern such a failure to act provokes is
reinforced by the finding of the review in regards to the shootings
it examined.
Investigations often produced recommendations
which were accepted at Chief Officer level but did not appear
to be reflected in the future operation behaviour of the force,
compounded by the fact that there is no outside monitoring of
the forces response to the recommendations made.[15]
The review recommended that the recommendations
for action made by investigators should be passed to the Inspectorate
and to the bodies in the police service responsible for disseminating
best practice including the "Standing Committee to Learn
Lessons from Adverse Incidents".
The Prison Service does not have a parallel
to the PCA and the future IPCC. Proposals have been consulted
upon by the Home Office to establish the present office of the
Prisons and Probation Ombudsman upon a statutory footing and to
extend his remit to cover all deaths in HM Prison Service custody.
The Commission has not itself been consulted upon these proposals.
While it supports the long standing request by the Ombudsman that
his office be put on a statutory footing, the Commission's own
experience in conducting an investigation into the circumstances
leading to one death in which negligent actions by HM Prison Service
staff created the context in which a murder could take place,
suggest that a more substantial change is required.
At present, under the Coroners Act, all deaths
in prison custody must result in a Coroner's inquest before a
jury. This requirement, which has been part of coronial law for
centuries, is an important expression of the need for independence
in the investigation of any death in a prison. It does not, however,
meet two considerations relevant to our concerns on how to ensure
the implementation of good practice.
First, if a coroner is expected to fully explore
the factors of possible negligence lying behind a prison death,
the scale of the investigation may be beyond their capacity to
deliver. This point was made by the West London Coroner in evidence
to the House of Lords in respect of the death of Zahid Mubarek
when she explained why she did not consider that she was in a
position to hold an inquest into his death. For a coroner in such
circumstances to rely upon an internal investigation by HM Prison
Service would be both inappropriate and inadequate. The findings
of our Nominated Commissioners in respect of the murder of Zahid
Mubarek reinforce this point: the internal investigations were
inadequate and the causes were complex.
Secondly, the coronial system is not designed
to ensure the pursuit of good practice on the part of agencies
such as HM Prison Service. A Coroner's power to notify any authorities
of actions it may be advisable to take related to issues revealed
by the death they have investigated (letters sent under rule 43
of the Coroners Rules) is not consistently used nor is it publicly
reported. Research conducted for the Fundamental Review of the
service[16]
found that
One third of Coroners did not use rule 43 at
all last year. At the other extreme 6% of Coroners raised more
than 10 letters and one raised 60.
No outcome was reported for about a quarter of
the rule 43 interventions. In 45% of the cases some change had
been implemented or the matter was in the action plan for the
Agency concerned. In a further 21% of cases the issue was under
review. In 10% of cases, the letter had either been rejected or
inadequate action (in the Coroners' view) taken.[17]
In 6.6% of the cases, the rule 43 letter was sent
to HM Prison Service[18].
Neither the Prison Service nor any agency assisting Coroners,
had, at the time covered by the Commission's investigation into
the circumstances leading to Zahid Mubarek's death, any way of
gathering together what these letters may have said, whether they
were being properly responded to by the Service and whether that
response led to the replacement of poor or negligent practice
by consistent good practice.
In contrast to this situation, a recommendation
that came out of the review of police shootings cited above was
that recommendations made by one investigation into a shooting
involving a particular police force should be included in the
terms of reference of any future investigation into a shooting
involving the same force[19].
This would help to make the issue of any persistent failure to
follow proper practice clear and open.
The Fundamental Review went some way down this
road in recommending that:
— a coroner's findings and recommendations
be sent to any statutory regulatory service which regulates the
activities of the recipient body and any inspectorate which inspects
its work;
— these bodies should report on such
recommendations and say whether or not they are satisfied with
the actions of the agency concerned which have followed; and
— the recipient agency should inform
the coroner as to what they have done[20].
These are clearly steps which are sensible,
but they need an effective institutional apparatus to handle them
if they are to result in the permanent implementation of better
practice.
Such arrangements would need to supplement them
with their own wider reviews to examine aspects of deaths of custody
which may not become apparent from the investigation of individual
deaths. This is particularly the case with differentials arising
between ethnic groups.
One example of an area in which this kind of
approach could have significant impact on Prison Service practice
is that of drug related deaths in prisons or the period immediately
after release. Research evidence indicates that crack cocaine
(a stimulant) is the Class A drug most frequently used by ethnic
minority males rather than heroin (a depressant) which is the
Class A drug most apparent in the white prisoner population. Drug
treatments in prison have been focused on heroin and not crack
cocaine[21].
Monitoring and race impact assessments of policies of the kind
promoted by the amended Race Relations Act could help significantly
to direct improved practice to overcoming such differentials.
Another example is that of suicide in prison.
Ethnic monitoring is not yet adequately developed to pinpoint
the extent and nature of the involvement of prisoners of Irish
and Irish Traveller origin in suicide. Significant concerns have
been expressed by voluntary sector agencies working with such
prisoners that the treatment of such prisoners has not adequately
met their needs and so has contributed to what some evidence suggests
may be higher rates of self harm and suicide in these groups[22].
On the other hand, no research appears to have been conducted
so far into the significantly lower rates of suicide for the Black
group in prison. The contrast is marked. Were the white group
to experience the same rate of suicide as the black group several
dozen lives would be saved each year.
We consider the practical implications of these
issues under the next heading.
ENDING THE
INCONSISTENCY ACROSS
AREAS OF
CUSTODY
The present arrangements for investigating deaths
in custody provide no consistency between the different regimes.
This both denies relatives of those who die in prison custody,
for instance, the same level of response to that provided after
those who die in police custody. The contrast will become the
greater after the IPCC starts work.
It also means that good practice developed in
response to deaths in one area of custody are unlikely to be followed
more widely. There is no practical reason for this inconsistency.
While the proposals of the Fundamental Review
of the Coroners' service would, if implemented, improve matters
so far as investigation of individual deaths is concerned, they
would not of themselves resolve the more fundamental problems:
the level of investigation would continue to be limited (both
by resourcing and by the difficulty that the investigation of
individual deaths would not succeed in uncovering important background
patterns) and the mechanisms for ensuring best practice was consistently
implemented would be weak.
At the very least, there is a clear argument
for extending the kind of arrangements proposed for the police
to all other areas of custodial practice (prisons, mental health,
immigration detention centres and detention centres run by the
Services).
The design of the institutional arrangements
should be guided by the principle that all areas of custody are
covered by arrangements which provide for:
— Accountable, independent and effective
investigation of individual deaths.
— A central focus where patterns of
causes and contributory factors can be understood and analysed.
— Development of adequate remedial
measures and lessons learned and their translation into good practice
guidance for the relevant staff.
— Establishment of monitoring and regulatory
procedures and powers to ensure that the lessons learned are implemented,
lead to changed practices and that deaths do not continue to be
caused by the same contributory factors over a significant period
of time.
The present situation is unsatisfactory and
neither assists the staff of the agencies involved to improve
the way they work nor secures public confidence. The proposal
to give the Prisons and Probation Ombudsman responsibility to
investigate deaths in prison custody should be considered in the
light of such principles. If an extended Ombudsman's office was
to be provided with the powers and the resources to meet those
principles, then the establishment of an additional agency might
be considered disproportionate.
PROVIDING PROPER
ASSISTANCE TO
RELATIVES
A responsibility laid upon the Commission by
section 66 of the Race Relations Act is to consider applications
for assistance from members of the public who consider that they
may have been unlawfully discriminated against. The Commission
has assisted many thousands of individuals in this way either
with legal representation or with expert advice. It is the experience
of the Commission that the generality of these individuals would
not have succeeded with their claims if the Commission had not
assisted them.
Relatives seeking to establish what happened
after a death in custody face particular difficulties. Unless
they are completely confident in the independence of the investigation
which then follows and wish to play no part themselves, they need
the assistance of expert advice and possibly also legal representation.
The present arrangements rely upon the work of voluntary agencies
such as Inquest which have limited resources.
Such arrangements as are put in place in the
future need not only to be open and accountable to relatives,
but also to provide them with the means to play their part in
the investigative process.
15 October 2003
5 The Stephen Lawerence Inquiry: Report of an Inquiry
by Sir William Macpherson of Cluny, February 1999 and Review
of the Race Relations Act, April 1998. Back
6
The Commission does not have a power to investigate deaths in
custody but sections 48 to 52 of the Act give the Commission the
power to conduct formal investigations into the actions of organisations
if it has grounds to believe that unlawful racial discrimination
may have taken place. In the summer of 2000, the Commission was
considering launching such an investigation into HM Prison Service
of England and Wales. Following the conviction in November 2000
of Robert Stewart for the murder of Zahid Mubarek in YOI Feltham,
the Commission decided to add "the circumstances leading
to the murder of Zahid Mubarek and any contributing act or omission
on the part of the Prison Service" to the matters to be investigated. Back
7
A Review of the Role and Practices of the Crown Prosecution
Service in Cases Arising from a Death in Custody by the Rt
Hon The Lord Goldsmith QC Her Majesty's Attorney General, July
2003, page 3. Back
8
Though different totals are provided (arising possibly from different
definitions as to the term "in custody"), figures issued
for the police related deaths for the period from 1999 to 2002
show that though ethnic minorities are still over-represented,
there has been a downward trend in the percentage of those involving
black or Asian members of the public as shown in annual statistics
issued by the Home Office, the Police Complaints Authority, and
Inquest as well as in the above mentioned Review of the CPS. Back
9
Section 9 of the Attorney General's Review of the CPS
discusses this issue appropriately. Back
10
For instance, the Fundamental Review of the coroners service
found that among its "critical weaknesses" was the fact
that "There has been no reliable or systematic response to
minority community wishes, traditions and religious beliefs"
(p 17, point g, Cm 5831). Back
11
These issues include not only matters such as the independent
nature of any investigation and whether or not relatives have
a right to participate in any investigation but also whether or
not there should be an investigation of a public character. The
House of Lords will indicate further its opinion on some of these
matters when it delivers its judgment in the case of Amin
concerning the death of Zahid Mubarek. Back
12
A Formal Investigation by the Commission for Racial Equality
into HM Prison Service of England and Wales: Part 1: The Murder
of Zahid Mubarek, CRE, July 2003. It is the intention of the
Commission to conclude the investigation and publish a final report
in the autumn of 2003. Back
13
Review of shootings by police in England and Wales from 1998
to 2001, Police Complaints Authority, January 2003, p 12. Back
14
Review of shootings by police in England and Wales from 1998
to 2001, Police Complaints Authority, January 2003, p 14. Back
15
Review of shootings by police in England and Wales from 1998
to 2001, Police Complaints Authority, January 2003, p 112. Back
16
Death Certification and Investigation in England, Wales and
Northern Ireland: The Report of a Fundamental Review, 2003,
Cm 5831. Back
17
Review of Coroners: Analysis of Survey: UK of rule 43, 2003,
p 4. Back
18
Review of Coroners: Analysis of Survey: UK of rule 43, 2003,
p 17. Back
19
Review of shootings by police in England and Wales from 1998
to 2001, Police Complaints Authority, p 113. Back
20
Fundamental Review, pages 95 to 96. Back
21
See for instance Differential Substance Misuse Treatment
Needs of Women, Ethnic Minorities and Young Offenders in Prison:
Prevalence of substance misuse and treatment needs, a Home
Office Research, Development and Statistics Directorate paper
available on-line at www.homeoffice.gov.uk/rds/pubsintrol.html
published in 2003. in the week following release, prisoners are
40 times more likely to die than the general population and over
90% of these deaths are related to misuse of drugs (see Drug-related
mortality among newly released offenders, Home Office research
Findings Number 187, 2003). See also the report Drug-related
Deaths in Police Custody: A Police Complaints Authority study
May 2003. Back
22
In 2003, HM Prison Service published a report, Review of Deaths
in Custody at HM Prison Brixton, following concern over the
suicide of seven men of Irish origin in the prison between December
1999 and May 2002 which concluded that "no corroboration
was found for the general complaints made to us" but added
that "the Service should not be complacent about these matters
. . . There is a need to provide better guidance for prison staff
if such issues are to be properly addressed" (paragraphs
8.29 and 8.30). Back
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