UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 209-v

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

 

HUMAN RIGHTS AND DEATHS IN CUSTODY

 

MONDAY 15 MARCH 2004

MR PHIL WHEATLEY and MR NIGEL HANCOCK

MR IAN BYNOE and DR DAVID BEST

Evidence heard in Public Questions 322 - 405

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Monday 15 March 2004

Members present:

Jean Corston, in the Chair

Bowness, L Campbell of Alloway, L Judd, L Plant of Highfield, L. Prashar, B

Mr Paul Stinchcombe

________________

Memorandum submitted by The Prison Service

Examination of Witnesses

Witnesses: Mr Phil Wheatley, Director General and Mr Nigel Hancock, Head of Safer Custody Group, The Prison Service, examined.

Q322 Chairman: Welcome to this meeting of the Joint Committee on Human Rights. I should explain that this time we were expecting Sir Alistair Graham and Dr David Best from the Police Complaints Authority. I gather that Sir Alistair is stuck on a train and his deputy will be coming with Dr David Best, the Director of Research, later on. We are very grateful to Phil Wheatley and Nigel Hancock from the Prison Service for coming at an earlier time. As you know, this inquiry on deaths in custody has been going for some time. We published the written evidence that was submitted to us but we consider that the passing of the Human Rights Act has put a particularly sharp focus on the question of deaths in custody. It goes without saying that even before the passing of the Human Rights Act of course any death in custody was a matter not only of great regret but for investigation. There is a sharper focus now with Article 2, the right to life, which obviously imposes a particular responsibility on those who are responsible for the safe custody of others. Perhaps I can start with a question about the rates of self-inflicted deaths. It is a very welcome improvement that suicide rates as a whole and in England particularly have gone down in recent years but the rate of suicide in prison is increasing. What conclusions does the Prison Service draw from this?

Mr Wheatley: Actually the rate is not increasing. The number is increasing. We are holding a substantially greater number of prisoners. I do not want to be complacent about suicide in prison by suggesting that somehow because the rates are not going all is okay at the moment; that is not the case at all. Suicide in prison is a relatively rare event - 75,000-plus prisoners held for 365 days a year and I expect on this financial year's figures slightly under 100 people will have committed suicide. That is 100 too many but it is a relatively rare event which means that statistically you can end up with quite a lot of fluctuation. We try and iron that out by regarding our best measure as a three-year rolling average and, looking at the three-year rolling average rate per 100,000 prisoners, it peaked in 1998 at 133 per 100,000 and it is currently running at 129 per 100,000. It has dropped slightly. I do not want to make too much of that. I have got figures that go back to the beginning of 1995. The rates are remarkably steady with some minor fluctuations. I do not think that entitles me to say that there is no problem but it means that the rate is not increasing sharply. The numbers are increasing sharply because we are holding a much larger number of prisoners.

Q323 Chairman: I understand that suicide prevention training is not mandatory for prison staff. Why is that?

Mr Wheatley: It is mandatory for all new staff. Everybody who enters the service has training about our suicide prevention policies and how to implement them and the importance of them. We have stopped having mandatory training by which we at the centre say that in every establishment this training must be done, primarily because we want to empower our governors to train in the things that matter in that particular location. As an example, in open prisons, where there have been very few, if any, suicides, it probably does not make sense to make that the biggest thing to train in, or security training, but training in resettlement probably is the biggest issue. In local prisons where the bulk of freshly received prisoners arrive and where probably the largest majority of prisoners have got other problems, particularly mental health problems and drug misuse problems, it makes very good sense to train in suicide prevention, particularly for those staff who are going to be most closely involved in that work. We are trying to move away from a centralised sheep-dip approach to training, if I can put it that way, to a much more targeted approach. We are also devising additional training that we can do with staff around suicide prevention. Just saying we have got some batch suicide prevention training, putting prison officers or other staff through it, is not adequate. We are trying to understand a very complex phenomenon and intervene in difficult circumstances and that requires more than that sort of generalised training.

Q324 Chairman: Is it your understanding that in local prisons where there may be particular problems they are doing this work?

Mr Wheatley: Yes. My understanding of most local prisons is that suicide prevention is a major part of their business. It is particularly in those places where we are piloting a new approach on suicide prevention, but actually it is crucial to all governors at local prisons and trying to concentrate on doing things that reduce suicide and it has been highlighted for all governors as a real priority for the service. I am slightly ill at ease with targets in an area like this, but there are targets. It has been highlighted both by me and my predecessor as something that is an important priority and something that is crucial for the service if we are to deliver a humane and decent service.

Q325 Chairman: You corrected me just now in relation to the rate of suicides in prison but it does appear from the figures you gave that it is pretty static, that there has not been a great deal of improvement. Is this an indication that the Safer Custody Programme is failing to have the kind of impact you had hoped for?

Mr Wheatley: No. I think it is an indication that the problems we are dealing with have changed and have got worse over time. To some extent we are having to work very hard to stand still or get some slight reduction. The Safer Custody Programme is also targeting a number of establishments more specifically and substantial additional investment is going into improving the way we deal with prisoners in those prisons. We have seen where that pays off. The early indications are that that piloting is producing a reduction in the rate of suicide in those establishments with some very measurable improvements in the way in which staff in prisons are interacting, which we also think plays a part in reducing suicide. Over a period of time without doubt we are seeing more prisoners coming in with substantial drug problems and I think that arriving in custody, being arrested and remanded in custody or awaiting sentence, depending on what particular status you are, is for anybody a very disturbing time. Most people did not plan on this happening. It was not what they expected to happen. It disrupts a whole series of existing plans and hopes they had. It is a time when people are having hard work coping with that change and what it means for their life outside and the previous things they had wanted to do. If you add on top of that they are also detoxing because they have a substantial heroin habit, or indeed quite often multiple drug abuse, and they are coping with the effect of coming off drugs, that makes it much more difficult for them to think, "I can get through this". To me the key in reducing suicide - and I have been criticised for saying this - is to make prison feel bearable. You have to feel when you come in that you can cope with this. If they do not feel they can cope with it there is a risk that people will turn to suicide.

Q326 Mr Stinchcombe: I wonder if I could clarify the figures that you gave us on the rates? I think you told us that there was a rate of round about 120-130 suicides per 100,000 prisoners.

Mr Wheatley: It peaked at 133 and is running now at 129. At its lowest, and it is a three-year rolling average and I am looking at a graph which is not the easiest of things to do, it was about 125. I will have to check the lowest point.

Q327 Mr Stinchcombe: Are they suicides or self-inflicted deaths?

Mr Wheatley: They are self-inflicted deaths. We do not differentiate between things that the coroner gives a suicide verdict on and other occasions when people have killed themselves in some self-inflicted way.

Q328 Mr Stinchcombe: I wonder if you could drop us a note with those figures because the figures we have previously been given, for example, for 2002 and 2003, were that there was an actual rate of 146.9 per 100,000?

Mr Wheatley: That is not the smoothed average. I am giving you the three-year rolling average. There are much sharper fluctuations if you simply take a year's figures.

Q329 Mr Stinchcombe: That is helpful. Secondly, can you tell me what the key performance indicators are for self-inflicted deaths?

Mr Hancock: It is to reduce it to 112.8 per 100,000 prisoners by April of this year, which is a target that we will miss. It was a very ambitious target. Indeed, in the community the government set a wider target for a similar reduction over about a ten-year period, so we just missed the target that we were setting.

Q330 Lord Campbell of Alloway: You said, sir, something about no differentiation if somebody dies in custody between just dying and specifically committing suicide. Is that because - and I am not criticising you - when someone dies you would not necessarily know whether it was suicide, and if there is an obvious suicide because somebody is strung up with a blanket or something like that, do you record that as a suicide or do you wait for the coroner's verdict and then collect your figures for suicide, if you have any, from the coroner's verdict? How is it done?

Mr Wheatley: We do not keep and use in any of our performance data figures on suicide as such. We keep figures on self-inflicted deaths. In any circumstances where there appears to be clear evidence on the face of the situation, we classify it as a self-inflicted death and we do not correct afterwards with the coroner's verdict. Sometimes we get coroners' verdicts that suggest that somebody has accidentally killed themselves and they did not mean to, but if they have done something that they did themselves which led to their death we would classify that as a self-inflicted death. We give ourselves a slightly higher challenge than other agencies by doing that but it does save us waiting for inquest results so we can use the current data. Also, from our point of view because we regard trying to keep people alive as crucial - the right to life is crucial - it stops us saying that some of these events are not real suicides. They are self-inflicted deaths in our custody.

Q331 Lord Campbell of Alloway: Real suicides and unreal suicides are most difficult terms.

Mr Wheatley: Yes.

Q332 Lord Campbell of Alloway: Is the truth that there are no real records as to the number of people who commit suicide in prison?

Mr Wheatley: We can construct from coroners' verdicts, because we report the coroners' verdicts, in how many cases a suicide verdict was brought in, but we do not concentrate on that as we try to keep people alive and give people the right to life.

Q333 Lord Campbell of Alloway: So your figures are an in-house interpretation of coroners' verdicts?

Mr Wheatley: No. What we are saying is that this is where somebody has caused their death. It is self-inflicted. Their motivation, which is what the coroner very often looks at, we do not pay attention to.

Q334 Lord Campbell of Alloway: So you in fact have no internal records - and I am not saying you should have any - as to those who commit suicide in prison?

Mr Wheatley: For those who we think intended to commit suicide we rely entirely on the coroner's verdict.

Mr Hancock: It may help if I say that for a recent year, 2001, we revisited all our internal classifications because we have a very broad definition and it may be one reason why rates and numbers in the Prison Service are a lot higher than in the community. In 2001 we looked at 71 deaths which we regarded as self-inflicted and compared them with coroners' verdicts, and 48 of those, two-thirds, would have got a suicide or open verdict in the community and hence be classified as a suicide. In a sense, by being very inclusive, we over-classify. We are about a third more than would be the case in the community.

Q335 Lord Campbell of Alloway: Precisely. That is what I was getting at. It may be very difficult not to over-classify. It may be impossible to have a contemporaneous record. What you do is the best you can and that is an approximation?

Mr Wheatley: That is right. We have, for instance, outstanding inquests on suicides that occurred a number of years ago, which we would not be able to include at the moment.

Q336 Lord Campbell of Alloway: You said "we". By whom and how are these figures, whatever they are, produced? Who produces them and are records kept? Who does it?

Mr Wheatley: It is done by the Prison Service. Nigel, as part of headquarters, collates the information which is reported through our incident reporting system in which every death is reported. It is classified at headquarters on the basis of reports from establishments and every death that occurs in establishments you will not be surprised to know is reported.

Q337 Lord Campbell of Alloway: I see. It is done by headquarters away from the prison on a report received from the prison?

Mr Wheatley: Yes.

Q338 Lord Campbell of Alloway: And the report, as we agreed, cannot be conclusive.

Mr Wheatley: The way we seek to deal with that is to be inclusive, not to exclude out but to include in. We over-estimate the number of suicides on a tighter version as a result of coroners' inquest verdicts.

Q339 Chairman: If there is anything further on the subject which you would like to send to us please do so. It would be very helpful. Can you tell me what training the Prison Service provides for staff on the Convention on Human Rights?

Mr Wheatley: We provide training for all our new staff as they join, so prison officers have that as part of their basic training. As the convention came into English law we gave fresh training to our senior managers, governors and area managers, and we also concentrated some of that training on high security prisons where there are probably rather more challenges than in other parts of the estate. We tried to ensure that we trained the key people, legal services officers in particular, and we train new staff as they come in.

Q340 Chairman: If we may turn to overcrowding and "churn", in your written evidence you told us that there is no firm evidence of a correlation between overcrowding and suicides in prisons. Has that hypothesis been tested?

Mr Wheatley: We certainly looked at whether we can link suicide rates with different rates of overcrowding. I go back a long way in the service, having spent well over 30 years in it, when we had much higher rates of overcrowding than we do now and everybody was three to a cell. In the local prison that I worked in the suicide rate was rather lower, although it was inhumane in lots of other ways. There are some protective consequences of overcrowding. If you are facing severe doubts about whether you can survive prison, "Is this something I can do?", actually having somebody with you and they are reasonably supportive as a friend, think it is their job to support you as a fellow prisoner, can be protective. It can also make it difficult to commit suicide if there is somebody else present who will intervene. I do not want to suggest, of course, that more overcrowding is the answer. The big problem for us is sheer numbers. What we tend to call "churn" (which I do not much like as a term because it suggests that people do not count), the fact that we have large numbers of prisoners arriving in reception, very often late in an evening, together, does not help individual risk assessment of prisoners. The fact that we have got to clear the prison the next day to make room for another large group arriving and that those who can be moved have to be moved again does not help us to concentrate on people who need additional support. The fact that when we are working under great pressure we will be moving people well away from their home area, so we could probably also damage their ability to have visits, is also not a protective factor. That need to move people, to use every place we have, even if it is in the wrong part of the country, to make maximum use of our accommodation and to move large numbers, does make it more difficult for us to fully implement the policy we have. I know that puts staff and prisoners under pressure as we try and cope with that pressure. It is that rather than the individual fact that we have got two prisoners in a cell that causes problems.

Q341 Chairman: If that is the rationale for the "churn", that it is just a question of moving people around for no good reason, to what degree do you think it compromises your service's ability to provide a safe regime for prisoners?

Mr Wheatley: If we are working at maximum stretch - and we are not moving people casually; we are moving people to make use of every available place, so we are running up to about 99 per cent use of what we think is the available capacity, taking account of the margins that we allow for cell accommodation we cannot use because the wrong sorts of prisoners have arrived (there are not enough women or not enough juveniles) - it does make it difficult to individually risk assess prisoners to the extent one should and intervene, particularly in busy receptions, and staff do feel under more pressure because instead of unlocking a landing with seven or eight new prisoners on it you are unlocking a landing with 20 new prisoners on it. In those circumstances concentrating on the individual becomes more difficult.

Chairman: When the Chief Inspector of Prisons visited us recently she raised the rather disturbing policy which she described as "sale or return", and Lord Campbell is going to ask you about that.

Q342 Lord Campbell of Alloway: Thank you for answering the previous questions. There is one thing which worries a lot of us, which is the evidence of Anne Owers. She told us about the "sale or return" prisoners. You know what she was talking about.

Mr Wheatley: Yes. It is not an overt policy of ours.

Q343 Lord Campbell of Alloway: I am trying to find out, to save time, if the expression is understood by you.

Mr Wheatley: I understand what it means, yes.

Q344 Lord Campbell of Alloway: Amongst those who have gone from one prison to the next and then back again and then perhaps to another prison, is there any particular record of self-harm or suicide? Is there any special record kept?

Mr Wheatley: There is no special record as prisoners are transferred, and they are transferred for a variety of reasons.

Q345 Lord Campbell of Alloway: For example, it is semi-medical. They have all been sectioned once. Right?

Mr Wheatley: They have not normally been sectioned, no.

Q346 Lord Campbell of Alloway: According to Anne Owers, they have first been sectioned.

Mr Wheatley: No.

Q347 Lord Campbell of Alloway: May I tell you what she said and then you can tell me if it is wrong? First she said that they are sectioned in one prison and because they have been sectioned they are then sent off to another prison, and when they get to that prison they behave in such a manner that the doctors there say they are violent and therefore cannot be treated, and therefore they are returned. I think I have put accurately the essence of what Anne Owers was saying. She said they were "sale or return". There is a medical record of their section, is there not?

Mr Wheatley: That is not what I recognise by "sale or return". What I know happens, and I do not in any way want to fudge what happens, is that prisoners, actually mainly outside the local prison system, having been allocated into training prisons will run into difficulties in the training prisons, which means that they are not settling. It may be that they are doing simple things like refusing to work, it may be that they have been engaging in indiscipline, abuse of

staff, sometimes assaults on staff, and they therefore end up in the segregation unit, segregated from other prisoners - segregated, not sectioned. They are not there because they are a mental health problem. In fact, if they were a mental health problem we should be intervening differently.

Q348 Lord Campbell of Alloway: Could I interrupt? We are not understanding one another. There are prisoners who are sectioned under the Mental Health Act; right?

Mr Wheatley: If prisoners are sectioned under the Mental Health Act they are not transferred other than to a mental health hospital.

Q349 Lord Campbell of Alloway: Can we deal with it in stages? There are prisoners who are sectioned under the Mental Health Act?

Mr Wheatley: Yes.

Q350 Lord Campbell of Alloway: That is obviously recorded somewhere.

Mr Wheatley: Yes.

Q351 Lord Campbell of Alloway: Having been sectioned, they are sent to another prison.

Mr Wheatley: That is unusual and not anything that I know as a normal thing to happen. When somebody is sectioned and awaiting allocation to a psychiatric hospital, they are kept in the place where they have been sectioned normally unless there is some overriding reason why not.

Q352 Lord Campbell of Alloway: And they get to the hospital. When they get to the hospital the doctors there say, "They are so violent that we cannot keep them".

Mr Wheatley: I have certainly seen that happen.

Q353 Lord Campbell of Alloway: That does happen?

Mr Wheatley: Yes, and it happens normally with prisoners who have got a diagnosis of personality disorder where the hospital must only keep them under the Mental Health Act, which I am not an expert on, if they have got to be treated and the hospital may decide this person is not treatable. At that point they are returned to us.

Q354 Lord Campbell of Alloway: On the one where the hospital says they are not treatable, of course they have a mental disability or they would not be there and they would not have been sectioned, but the hospital then says, "We cannot treat them", for this reason or that reason. Then they are moved, are they not, if they cannot stay in the hospital?

Mr Wheatley: Yes.

Q355 Lord Campbell of Alloway: So they are moved from the hospital somewhere else, to another prison?

Mr Wheatley: They will be returned to the prison, normally the one that sent them there.

Q356 Lord Campbell of Alloway: Those are the people that some of us are concerned about. What sort of records have you got of those people committing suicide or none? I am not criticising you. If there is none, there is none.

Mr Wheatley: Certainly it has never been drawn to my attention, as somebody who has spent a long time looking at the figures, that this is a particular group at risk of suicide, though there is a small number of prisoners who, in a variety of ways, come back from hospital. Some of those who go out into psychiatric hospitals come back having been treated and with their psychiatric illness under control, and they are sent back to us on those grounds because they have been in the hospital during a particularly florid outburst. Some are sent back, as you say, normally because their personality disorders are not treatable, but I have no evidence that that group are at particular risk of committing suicide. That is not "sale or return".

Q357 Lord Bowness: Chairman, could I just follow Lord Campbell's question? Leaving aside the sectioned point, is it fair to say that prisoners who are subject to the "sale or return" procedures tend to be those who may have mental health problems or who are vulnerable in some other way or difficult in some other way?

Mr Wheatley: A number of those who do not settle in prison are probably capable of having a diagnosis of personality disorder; in other words, their very misbehaviour may be linked to a personality disorder that is not treatable, which means that they cannot got to a psychiatric hospital, and we in the Prison Service have to do our best to contain them safely to them and safely to other prisoners and staff. They will occasionally be moved from prison to prison. We have found out by doing that (this is not just a casual system) for prisoners who have got into difficulty in one prison if we can change the environment and the circumstances and try them again, not put them straight into the segregation unit, that they can settle elsewhere. We do get some prisoners to settle down after that process by moving people, often because they have got themselves in binds with people, perhaps because they are not easy to live with. As a system it can work to settle people as we try to find an environment in which they can settle, but they are a problematic group who are not treatable and have what could be described as a personality disorder and can be very difficult prisoners perhaps as a result of that.

Q358 Baroness Prashar: I want to ask two questions, one in relation to overcrowding and another one about movement of staff. It has been announced that two women's prisons, Edmonton and Winchester, are going to be decamped in order to accommodate men because of overcrowding. What arrangements are you going to put in place to make sure that the women are moved to prisons near to their home, that they are properly risk assessed when they get to these prisons and that they continue to have the treatment that they were getting at Winchester and Edmonton?

Mr Wheatley: You are right. We are proposing to re-roll as the new women's prison opens at Bromfield, which is a site that was the old Ashford Remand Centre, which comes on stream in June and gives us a lot more places for women. We are closing Winchester initially and we expect to close the other one at High Point North(?). The regime that has been provided at Bromfield under the new PFI contract is a good regime. It has not been delivered yet so we cannot say how it has delivered, but we have contracted for what looks like a full regime with a proper provision of regime facilities, rather better than some of the places we have been using, like High Point North, which has got a very inadequate accommodation, and the women's block at Winchester is also a piece of late sixties/early seventies build and design and not the best of buildings. It is good quality stuff with a good quality regime. We are not able to test it yet because it has not opened. We are doing that so that we manage our margins and produce the extra places that we have been asked to produce by running with less than 2,000 empty places, because otherwise what we have is not enough women to fill the women's accommodation, so we have vacancies in the women's estate while we are probably overcrowding men more and would probably be going out into police cells if we did not do this. As we move women to Bromfield some people will be better off in terms of being near to home. If they come from within the London area, particularly the west London area, they will be better off, and some will be worse off. If they come from the other side of Winchester they will be worse off. That is a consequence of the move. I cannot say that with every prisoner they will get the same treatment that they were having at Winchester. They may get better treatment in some cases, they may not get exactly the same as they were getting. We are satisfied that we are opening what should be a very good prison with proper provision, but it will be disruptive. We are doing it to keep the margins of unused accommodation as tight as we can as we operate something like a super efficient hotel chain that never has a bed out of use.

Q359 Baroness Prashar: Will you have proper reception and risk assessment as they come in?

Mr Wheatley: Yes. They will go through the full assessment process at Bromfield which is built into Bromfield and which is good quality provisioning giving good quality reception assessment. I do not want to fudge the fact that it will be disruptive for many of the women who have established ways of operating and know the staff that they are with at the moment, and in some cases will not gain in terms of closeness to home.

Q360 Baroness Prashar: You made reference to a high quality regime, and one of the features of a high quality regime is to have consistent leadership in terms of governors and so on. Over the last five years a third of all prisons have had four or more governors or acting governors in charge. Why have they moved around so much? That must have an impact on the quality of the regime and the leadership.

Mr Wheatley: Moving governors does have an impact. We grow governors. Governors learn their trade by working in smaller establishments, first of all helping other governors, then taking charge of a small establishment, then usually a medium sized establishment before we put somebody in charge of our most testing establishments. Holloway in the women's estate would be a good example. We do that probably for most governors over something like a 20-year active life in governing because governors tend to join from other jobs. Very few of us come in straight from university, as I did, and even if we do we will probably come out the other side and be involved in the job I am doing now, wider work in running the prison system or dealing with the criminal justice system. If you are going to pull people through with a very limited period in which they are actively doing that job you produce lots of moves. If you also add on to that substantial expansion of the prison estate, which we have seen, including the private sector, who tend, with one exception at the moment, to produce their directors out of my stock of governors, and add in to that that people die, sometimes retire early for good reasons, and sometimes fail and are not able to carry on doing the job because it is a very testing job and we need to move them quickly, that produces a higher rate of movement of governors than some commentators think is ideal. On the other hand it does mean that I put somebody in charge of our biggest and most difficult establishments who have tested and developed their skills in a variety of other circumstances. I wish I did not lose people to other sectors; that would be rather nice. I wish actually some people did not move on and do jobs completely outside the Prison Service. One of my area managers has just moved into a job working in the Home Office, which is a good career development for her but I lose her skills and have had to replace her. Each of these jobs that happens produces a pull-through and some of the moves that you speak about are not moves in themselves. It is that as a governor moves there must be somebody who takes charge, so the deputy governor will immediately step into the in-charge role, even if it is only for a week or two, until the incoming governor arrives.

Q361 Baroness Prashar: How will you ensure consistency in terms of the regime quality?

Mr Wheatley: What we try to do in terms of ensuring consistency in establishment is to have a very strong role for area managers and to make sure that governors cannot just arrive, as I think they once did many years ago, and do whatever their own thing happened to be without regard to what had happened previously. By having clearer strategies for running our establishments, much more active line management to governors than we used to have in the past, we achieve that degree of consistency.

Q362 Lord Judd: I am sure you would agree that the primary objective for the prison is rehabilitation, and if rehabilitation is to work the prison is a community and, if you are going to have a successful community, stability in the leadership of that community is absolutely crucial surely?

Mr Wheatley: If I can only achieve that at the cost of putting a governor in charge of, say, Holloway, who had not been tried and tested elsewhere and had not learned their trade, and as I said the really important thing is that I can keep them there for ten years, I would put prisoners and their rehabilitation at risk. I expect to move people between places and as long as the total service is expanding (including the private sector) as fast as it has done, from locking up a population when I arrived in headquarters of 41,000 at the beginning of 1992 through to 75,000 today with new establishments open, that will produce a pull-through for governors which gives me higher "churn" than I like, but I have got to manage that.

Q363 Lord Judd: Would you not agree that there is an issue to be addressed here because if what I say is true and you agree, that rehabilitation is an objective, other considerations in the Prison Service are making it impossible to have the ideal conditions in which the community atmosphere can be developed?

Mr Wheatley: I do not think that is true. What we are doing is trying, with the resources we have got, to achieve the best possible result we can get. None of these moves is being made capriciously, that we think we will just send the governors to other prisons and move them on because we just feel like it. What we are doing is trying to make sure that we have the right people in charge of establishments to make those establishments deliver, which includes delivering on rehabilitation, which includes guaranteeing the right to life and looking after people properly. We are trying to do that having taken sensible decisions about which governors will do which job best. I am developing prison governors' careers by trying them in places. I will take an example: the Governor of Bedford recently moved to Feltham and took a small, under-performing Victorian local prison and made big changes in it and did that over, if I remember rightly, a three-year period. The Governor of Feltham gained promotion. I cannot guarantee who is going to get promotion because we deal with promotion under proper Civil Service rules and people can apply for it and be considered and the best person will be given the job. He got promotion justifiably, having done a good job at Feltham, and we took the view that we had to fill that Feltham vacancy because Feltham is a big and very difficult establishment to run and, although much better than it used to be, needs positive and firm leadership. We got hold of the Governor of Bedford and said, "We think you are the person for Feltham. We are going to move you", and ascertained if he was prepared to do that. We moved him very quickly indeed and then advertised the vacancy at Bedford and have since got a good candidate for it. We had to cope with those eventualities quickly and we have done that and it has produced pull-through, so that I could put a tried and tested governor into Feltham who has worked with young offenders before, who can lead turnarounds of establishments, has proved his worth in that, and has proved his leadership and management skills, and we have put him into a place where I know those skills will be needed.

Q364 Lord Judd: If you go back for a moment to the area of mental instability and so on, some people will argue that for the prison population as a whole there is a tendency for mental health to deteriorate during the prison experience. MIND has certainly made that point in written evidence. Do you agree?

Mr Wheatley: I think there is a risk in prison that if we do not treat people properly and recognise the difficulties they have got, they might deteriorate. However, I can think of many people I know who have come in with fairly acute mental health problems that have not been successfully treated in the community who have much improved because of the interventions that have happened in prison. Both could be true. If we are operating well the latter is more likely to be true and that relies on us being able to assess people properly, and therefore "churn" is very important at that point. If we are not assessing people properly it is more doubtful that we will achieve that. It is very important to have good quality mental health interventions available for us, and they have much improved over the last few years, particularly access to community psychiatric nurses in prison. The In Reach programme in prison has been very effective in improving our treatment of a number of people, including some of those in the personality disorder group.

Q365 Lord Judd: I note what you are saying about improvement of the quality of service in that area. Would you not agree that there are nevertheless a lot of people who for mental health reasons or drug addiction reasons would really be better off in a different kind of institution than prison?

Mr Wheatley: Of course. It is largely a matter for the courts in my case as to who I get, and I do not try and second-guess the courts. It is not my business to do that. We do identify a number of prisoners each year, round about 600, slightly more than that over the last year, who require in-patient mental health treatment and we transfer them; we have the powers to transfer them. We know we have got people who have got mental health problems who in the community would not be in psychiatric hospitals but with mental health In Reach and appropriate treatment can be managed safely for them and safely for other prisoners in ordinary prisons, just like at home they would be with the community psychiatric nurse.

Q366 Lord Judd: So you think that either people should be in mental hospitals or special institutions or else you can handle the whole issue with the right services?

Mr Wheatley: With the right interventions for those who are not going through a florid mental illness that cannot be treated or is not being effectively treated, we can manage them in prisons reasonably. The mental health In Reach we have got has made us do a much better job there. The links we are making as a result of changes to the way that health is delivered to primary care trusts, direct delivery of National Health Service treatment into prison, are also improving what we do with this group. For the group which does need hospitalising as a result of changes mainly that the Department of Health have made, we are finding it easier to get them into psychiatric hospitals and the delay in getting them in slightly less than it used to be. I wish there was no delay at all, of course.

Q367 Lord Judd: You would not associate yourself with the argument that there is room for a different kind of institution which is not necessarily a mental hospital but not necessarily a prison either?

Mr Wheatley: It is not really an issue for me. We are able to cope at the moment with appropriate In Reach and that is very important. Without that psychiatric In Reach working it is much more difficult and there is a risk that we do not diagnose every mental disorder as well.

Q368 Lord Judd: You say you are able to cope. You are confident you are coping?

Mr Wheatley: I am confident we are coping, through I have already put the caveat in that if the "churn" is too great it does mean that I cannot be confident that every case is picked up because we are simply moving people too fast and are not able to assess them properly, so I worry about that.

Q369 Lord Judd: How far do you think that the Probation Service and those responsible for sending people to prison are taking sufficiently into account the mental health implications which are there in many of the cases before them and the prisons they send them off to?

Mr Wheatley: It is not something I can judge really. I do not know what information the courts have at the point they sentence and that will vary, I suspect, from court to court, depending on what sorts of schemes they have got locally to try to divert people from police cells into other forms of treatment, so I cannot second-guess that. I certainly hope that we do not get anybody who does require immediate transfer into hospital. We do obviously get some; that is why we are moving 600 a year who need psychiatric in-patient treatment, some of whom have been moved at the beginning of their sentence, some of whom do have an outbreak of psychiatric disorder while they are with us or the drugs that were previously working stop working and they run into difficulties. The majority are people we identify shortly after reception.

Q370 Lord Judd: Would you accept that you have a problem in persuading a lot of those who are interested in penal policy that what you have said is not complacent because there are a lot of people out there, including MIND, for example, who do not share your perception? What can be done to put their minds at ease?

Mr Wheatley: I am certainly not campaigning to say, "Send to us anybody; we can cope with them". What I am saying is that with the psychiatric In Reach we are now getting we are better able to cope with people, many of whom have psychiatric illnesses that are not the reason for their offending and who are perfectly able top cope in the community when they are outside and we can help them cope when they are inside. For those we need to transfer we are managing to transfer them. I would not want to go any further than that.

Q371 Mr Stinchcombe: I have just a few questions about those inmates first who are drug dependent. Can you tell me to what extent there are patient maintenance programmes available to inmates in prison?

Mr Wheatley: If you want a definitive list of the different treatments that are available and how many people are on them I would have to write separately to you.

Q372 Mr Stinchcombe: Can I take you up on that offer and put to you, so that we can deal with it quickly and effectively, the particular issues I wish you to cover? If you could break down the treatment programmes into maintenance, detoxification and rehabilitation and identify which programmes are available in prisons and the extent to which there have been steps taken to improve those treatment programmes and the extent to which they have been provided over the last three to five years, that would be very helpful.

Mr Wheatley: We can produce those figures for you and I can give you some information on what we have done with them. In the main we are detoxing prisoners rather than maintaining them on drugs, although there are some that we do maintain on drugs, particularly those who have been on methadone maintenance, particularly pregnant women who are on methadone maintenance, and we are increasingly doing some methadone maintenance in prison but the vast majority of prisoners we take off the drugs they have been on and do that successfully with a variety of regimes of drug support. We have recently been changing our drug support arrangements so that we use more effective methods. Some of the earlier ones were not detoxes I would wish to be associated with. We have put out guidance which is DoH approved on what sort of detox regimes doctors should use for prescribing but which are designed to get people safely off opiate misuse in particular rather than maintain them.

Q373 Mr Stinchcombe: May I ask you a question about those you do successfully detoxify and if you can address that in your written letter you can rather than telling us today. Once you have got them off drugs to what extent does the Prison Service offer naltrexone treatments, and especially naltrexone implants which would block the effects of opiates thereafter for a given period of time, so extending the window of opportunity for somebody to stay off drugs?

Mr Wheatley: I will endeavour to give an answer to that. It does depend upon those doctors' prescribing. Doctors can prescribe in prison what they want. The doctors have full clinical discretion to prescribe and I am not sure whether I can get central data on that but we will endeavour to produce it.

Q374 Mr Stinchcombe: You mentioned before the provision of health services in prison being taken over by the National Health Service. Clearly, the National Health Service promote both transfer of needles and also free condoms in order to cut the rate of AIDS infection. The rate of AIDS infection in prison is higher than for the general public. To what extent is the Prison Service going to be able to introduce those programmes into prisons?

Mr Wheatley: On needle exchange the evidence of our research and our intelligence is that needles are very rarely used in prison. The method of taking opiates of choice is normally smoking it, although many of our prisoners would use needles outside. We do not want to get into a needle exchange policy that appears to sanction the use of needles because the highest risk of factor is the use of needles, full stop. The risk that people, even with a needle exchange system, will share needles at the point they are using them is too high. At the moment, as long as our evidence indicates that the use of needles in prison is very rare and that we are effective in preventing their use, we will not want to go for needle exchange because I think it will make the problem worse. That is based on analysis of what is the best way of protecting prisoners from the consequences of their actions. We need to keep that under review because that could change. On condoms the policy is that doctors can prescribe and health care professionals can also give condoms to people if they think that is necessary in order to protect life, and I do not want to intervene in that. That is something for doctors and health care staff and I want them to use their judgment sensibly. There is a balance to be struck because condoms have lots of uses, not all of them the ones that you would imagine. They can be used to conceal drugs and stuff them, so a policy that says that condoms will be available each week carries all sorts of disadvantages. A policy that says that those we think are at risk can be given condoms seems sensible and that is the one we adopt.

Q375 Baroness Prashar: Following a death in custody how do you ensure the lessons learnt are fed into the Prison Service and the prison itself and how do you make sure that the practice is adapted for future purposes?

Mr Wheatley: All the death in custody regulations are seen by the policy group which Nigel is in charge of to make sure we are looking carefully to see what are the lessons that emerge from the investigations. All the investigations are handled by the area managers who need to ensure that those recommendations that have been accepted are implemented, so there are methods of doing both and we have endeavoured to learn from the investigations and use investigations not as a means of apportioning blame, although that may occasionally be appropriate, but as a means of learning what happened and what can we correct where we will make a difference in the future.

Q376 Baroness Prashar: How will you work with the Prisons Ombudsman in his new role?

Mr Wheatley: I am expecting that the Prisons Ombudsman will bring a new rigour in investigations because he, in the main, will be doing investigations with people who are full-time investigators whereas I have had to deploy governors from other work to do the job and also manage some of their remaining day job. So, I think we will get more rigour, more expertise and more resources going into them - the Ombudsman has an allocation of money which will fund more staff than we were able to put into it and I think that will improve quality. We work very closely with the Ombudsman and are already working closely on the investigations that he has done so far and I meet him regularly, he exchanges information with us, he has involved prison staff working with him and he has exchanged information with those who are responsible for policy and suicide prevention. It is a very close and effective relationship while he maintains obviously his independence.

Chairman: Mr Wheatley and Mr Hancock, thank you both very much for coming before us today. Thank you for agreeing at short notice to come at an earlier time than you had anticipated and we look forward to hearing from you with the further written submissions that you promised to send to us. Thank you very much.

Memorandum submitted by Police Complaints Authority

Examination of Witnesses

Witnesses: Mr Ian Bynoe, Deputy Chairman, and Dr David Best, Director of Research, Police Complaints Authority, examined.

Q377 Chairman: Mr Bynoe and Dr Best, thank you both very much for coming today. We gather that your Chairman has been unavoidably detained, so we are very grateful to you, Mr Bynoe, for stepping in at short notice. You understand, I know, the point at which we have reached with our inquiry into deaths in custody and of course it is probably right to say that we are taking evidence from you at quite a good time in that, in a couple of weeks' time, the Police Complaints Authority will cease to exist as a public body and will be replaced by the Independent Police Complaints Commission, so this is probably quite a good opportunity for you to share with us some reflections on the way in which the PCA can react to, deal with and try to eradicate deaths in custody. If I could first ask something about what you perceive to be the impact of the Police Complaints Authority. Would you say that, in the last eight years in which you have been operational, your organisation has had any impact on the levels of deaths in custody or the ability of the system to allocate blame or learn lessons or provide redress?

Mr Bynoe: Thank you very much for inviting us to give evidence. I do apologise for the fact that my Chairman cannot be with you this evening but, as a deputy, I have to deputise. I am familiar with the material both earlier said to you and with the questions which your clerk has kindly provided us in advance. We will share the questions, Dr Best and I, and the first falls to me to answer. It is a difficult question to answer, firstly because any answer would appear to be self-serving in that, if you are invited to a public body, you are expected to have an impact, so one is bound to answer the question affirmatively "yes". In part, the answer to your question is "yes" because one can point to changes that have occurred during the last eight years and claim for the Authority perhaps a small but significant contribution in making those changes. The written evidence that we supplied took you through the annual reporting of the body to the Home Secretary and you are familiar with the first report that is summarised there, referring to the conference and following report on the subject of deaths in custody. Just to give you an example of impact, we highlighted in detail in that report some simple but necessary measures to raise the levels of practice in custody areas and the approach staff would take to assessing risk and dealing appropriately with the vulnerable detainee/vulnerable prisoner. In two respects, we said change was needed. Firstly, to ensure that custody staff saw the drug intoxicated person as at risk in the same way as the alcohol intoxicated person was and of course, at the time, Code C under PACE provided protections for the alcohol intoxicated but not for the drug intoxicated prisoner. From April of last year, the new Code C of the current edition of PACE puts the drug intoxicated prisoner on exactly the same footing as the alcohol intoxicated prisoner. So, simple changes that were needed in 1998/99 have fed their way through in that sort of policy journey into practice. Another example, rousability. Many cases over the past eight years highlight the failures of custody staff, civilian detention staff, police officer staff, custody officer and sergeants, to appropriately address this question of whether the person in their care is ill, is recovering from intoxication, is near to death or is perfectly okay and is asleep. Code C, for many, many years, simply provided wholly inadequate guidance to the practical staff on the ground having to do the job as to what the obligation to rouse amounted to. Way back in 1998 at our conference and in 1999 in our report, we said, "You must give exact guidance to practical staff as to what rousing means." It is now in Code C. It is a difficult question to answer because getting it into the Code is one thing and getting it into practice another completely different thing. So, at all stages, when you claim there has been impact - and we are just talking of one example here, the impact on the practice of custody staff in addressing the risk of the vulnerable - you have to step back and ask, is it really happening? It is probably too soon, far too soon, to judge whether, in practice, rousing is now done according to the Code. So, partly the Authority, in its last few weeks, say that many of these important changes maybe have reached the policy or the procedure level, but we cannot be confident about whether it has reached the practical ground level, the lino level, of the custody areas where these things need to happen. Every time that one is tempted to say that things are much better, that the custody area is a safer environment, more safety conscious, one of my colleagues is asked to supervise an investigation into an incident which reveals about it all the things that we have been hammering on about for the last probably ten years. Recent experience is that, I, as Deputy Chairman with my colleague Wendy Towse, the other deputy, are frequently discussing these critical incidents and I know from my personal knowledge that recent cases will have revealed the same sorts of human errors, faulty judgments and failing facilities which the Authority has highlighted over many years.

Q378 Mr Stinchcombe: As a Member of Parliament, obviously I have particular concerns about all constituents that I represent. Recently, one of those constituents died in a police cell. A few weeks before that, somebody came to my surgery having been detained in a police cell on suspicion that he had been drunk when in fact he had been mugged and was a victim of brain injury. It is really important and vital particularly in those kinds of incidents that there is an adequate level of training consistently available across the nation in all of the custody suites and also adequate levels of staff. Is there any variation in the levels of staff and in the level of their training across the country?

Dr Best: I think we would have to begin by making some kind of caveat about our own response path. We deal primarily with death cases, so looking at death cases, I think we would say that, yes, there is significant variation and the variation is not just between police forces, it is within police forces as well. We are frequently surprised when we read the final investigation report at the inconsistencies in the levels of training that we observe that are successfully identified by the police investigating officer and we know that officers themselves are aware of this. When we did some work with custody officers in the Met last year, they were very keen to point out to us how limited they felt their own training was and the picture is one of inconsistency. It manifests itself frequently in two particular points. One is identifying the initial illness and the second is immediately responding to somebody having been taken ill and I think we can say that it is not simply a time sequence of gradual improvement in this area, there are clear inconsistencies.

Q379 Mr Stinchcombe: Do custody officers have their training before they take up their duties or is it provided after they take up their duties?

Dr Best: There are now national standards that forces are working towards and our experience is that they have not yet been adequately implemented and have not filtered down to that ground level. We cannot answer that without proper research but what we can say is that we have certainly encountered anecdotal evidence that custody officers have been in place for some period of time before they receive even first-aid training in some forces. So, yes, there is inconsistency both in refresher training and in initial training. A baseline level of knowledge and awareness of the kind of issues that we were speaking about earlier, drugs, alcohol, mental health, tends to be very, very low.

Q380 Mr Stinchcombe: If we are concerned with those vulnerable people held in custody in police cells who suffer either from illness or from mental illness or from drug or alcohol dependency problems, would it be more effective and more practical, rather than to try and train up all the custody officers in all those expertise, simply to secure appropriate medical support at those custody suites?

Dr Best: I think there are two separate strands to this. The first is, what can be done with police forces and police officers and there are initiatives in some forces to try and improve either the overall level of awareness or training or, secondly, to identify particular core groups who receive enhanced training in particular areas. In Northumbria, a programme has just been introduced called CIT for Mental Health which is an attempt to train a proportion of officers in basic awareness and identification skills around mental health to enable them to start some kind of process of initial assessment and ... Far from diagnosis. We are never going to be able to turn police officers into nurses or doctors, nor should we want to. There are schemes on the other side of the equation of trying to introduce nurses or doctors to a far greater extent. I think it is early days yet to come up with definitive answers around custody nurses. I think it is a promising step and, at the moment, there is a clear inadequacy in both the level of service provision and the quality of the interface between health services and the police. Part of the response to that is around police management and police training but part of it is also around joint working and establishing more effective practices, whether that involves custody nurses or some other scheme.

Q381 Mr Stinchcombe: Is there a wide variety of difference and inconsistency across the nation in the extent to which that trained and able personnel is available to support them?

Dr Best: Yes. I think one of the things that we have been particularly concerned about is firstly the variation in commissioning practices for forensic medical positions or police surgeons, so that their availability is different. There is a recruitment issue here as well. Many forces find it difficult to recruit adequate and adequately trained medical personnel to work in what is a very difficult environment for them. Our own concern is that many of the police surgeons really do not have the adequate skills or resources to provide that necessary backup. Given that we would start from the premise that the level of custody officer training is limited, I think it is worrying that, in some research work we have done recently, only around 20 per cent of the police surgeons had the section 12 qualification and only 24 per cent of them had the Diploma of Medical Jurisprudence, effectively their professional qualification in forensic medicine. So, the police, who themselves have limitations in their training and awareness, are reliant on a group who are frequently under-resourced and on occasions lacking in the specific skills and resources. To go back to your original question, yes, there are huge variations within and between forces in a number of police surgeons available and in the quality of service that they are able to provide.

Q382 Mr Stinchcombe: Would it be desirable to address those inconsistencies by promoting national policies and national standards?

Dr Best: Yes and I think that process is under way. I know that the Home Office is working with the Association of Forensic Physicians to try and establish better standards and better levels of training but, as we speak at the moment, certainly speaking from the death cases that we have reviewed and examined, that level remains at a far too inconsistent point with far too much variation in practice between forces and it is interesting to know that, in work that we are currently doing on alcohol related deaths, there are two cases where our own adviser on forensic physician issues has criticised in one case a custody team and in another case a forensic physician for their failures to provide adequate care or adequate treatment and I think these are issues that are problematic because of the inconsistency and because of the limitations on resource and training.

Q383 Baroness Prashar: I want to ask a question in relation to control and restraint. Are you satisfied that control and restraint is being used by the police proportionately and in accordance with detainees' human rights?

Dr Best: I have two caveats to start with. Firstly, I have to say that "control and restraint" is not really an expression that would be used by police forces as an expression that they would normally describe their own behaviour by. We would tend to talk more about officer safety. We have talked about restraint issues in the context of the deaths that we reported in our review of the 153 deaths in police custody between 1998 and 2003. Yes, there are concerns about restraint mechanisms in both fatal cases and in the run of complaint cases we get. There are sufficient concerns that ten per cent of allegations of an assault by complainants in the last completed year were upheld. So, of 120 complaints, 12 were upheld in this area. For other assaults, the substantiation rate was 7.4 per cent. So, yes, there are concerns. Specifically around the death cases, one of the big problems that we find was not so much the excessive use of force as the inconsistency of techniques of restraint particularly around transportation of detainees in police custody. We found that, in the police van in particular, the range of techniques used, sometimes officers extemporising to try and deal with particular issues like suspected cases of drug swallowing using techniques and restraint positions, really were possibly unsatisfactory. In terms of the overall rates of restraint in death cases, it is important to point out however that we found very little evidence to suggest that any of the deaths we reported could be directly attributed to the restraint techniques used.

Q384 Baroness Prashar: Are you saying that there is no consistency over the techniques used and that the guidance is not being followed?

Dr Best: There is consistency in certain types of circumstances. What we identified was one particular set of circumstances where this did not happen satisfactorily or consistently partly because there was a lack of adequate guidelines. I do not think that we can generalise that across all restraint techniques, and officer safety has been an issue that has been addressed quite significantly in recent years.

Q385 Baroness Prashar: Another area of concern is that your research shows a disproportionate number of control and restraint related deaths amongst ethnic minority groups. I can see that statistically that may be difficult to prove but do you have any kind of observation on that? Is that an indication of racial bias?

Dr Best: Yes, it is difficult to prove. The statistics were borderline and it is important to know that, in some of these cases, there would be an increased level of media scrutiny or family scrutiny around those restraint issues and we found it very difficult to factor out, particularly where the cause of death could not be clearly ascertained, what roles some of these restraint issues may have played. When we tried to investigate the specific cases around the ethnic minority deaths that we looked at, we found no clear relationship between any of the restraint techniques used and the deaths. We looked at the post-mortem evidence to see whether there were indications that the restraint techniques themselves in some way contributed. What we were unable to report on - and it is very difficult to get to the bottom of this question - is that inevitably the investigators' reports deal with issues of criminality or discipline, so it is very unlikely that they are going to uncover subconscious or organisational processes which might have some racist component. Certainly the evidence that we uncovered showed no clear indication of that, but this is the wrong kind of evidence base to try and answer that question from. You need far more substantial research evidence to get a sensible answer to the question of whether there is a racial component underlying this.

Q386 Baroness Prashar: What can be done to combat both the reality and the perception of racial bias? Have you formed any impression of how police forces are going about implementing their positive duty to promote race equality under the Race Relations Amendment Act?

Dr Best: I think the first thing, to reiterate one point that I have made, is that we need far better and more sophisticated research methods to look at this issue. I think doing retrospective reviews of police investigation failures is not going to uncover those issues if they are there. It is a point that I want to emphasise about our report. Simply because we could not find it, I would say that the police investigation reports are probably the wrong place to start to look at that question. What can be done to combat it? I would hope that there has been a gradual change in recent years towards transparency and increased openness about investigations, and independent investigation facility that will be open to the IPCC should continue that process of change towards increasing transparency and also the fact that there will primarily civilian-led investigations in these high-profile cases. The question of how forces are going about implementing their responsibilities I am afraid is not really one that the PCA, as a relatively small organisation, can answer and I would suggest that HMIC are probably a better body to try and answer that question for you.

Q387 Lord Judd: I would like to turn to the use of police cells as places of safety under the Mental Health Act. I am not altogether clear whether convincing and comprehensive central statistics exist on the extent to which this happens. Could you clarify the position.

Dr Best: We were discussing this issue earlier. We certainly do not have access to that statistic and, to the extent that it could be calculated, it would have to be worked out from the Department of Health overall statistics on Mental Health Act returns, but I think that it would only be an approximation and our understanding is that there is no central database that would provide you with that information.

Q388 Lord Judd: Do you think it would be good to have such information?

Dr Best: Absolutely, yes.

Q389 Lord Judd: If it is an approximation, how far do you think this is happening? What is your judgment on the scale?

Dr Best: I would be very reluctant to estimate the number. One of the things that we can say is that, in the most recent piece of work that we have done looking at alcohol related deaths in custody, we have looked at around 60 and three of those deaths were arrests under the Mental Health Act, so there is certainly an issue here. Looking at fatality statistics, obviously we cannot claim how representative that is. There were certainly issues and there have been cases over the years where deaths have occurred among persons detained and it is potentially an issue because this was never really intended under the original Act as an appropriate place for mental health detainees to be kept.

Q390 Lord Judd: So, you would confirm that, in the context of our concern about human rights and suicide, harm in that context, there is an issue?

Dr Best: Yes. I think that one of the things we should say in defence of the police is that the number of suicides in police custody is relatively low. I do not think that it will ever be acceptably low because any number of what is basically a preventable death is too many, but we are down to something in the region of two a year over recent years of clear suicide self-harm deaths in police cells. That is a significant drop over a 10 to 15 year window, but that does not alter the fact that this is not an appropriate place, there are not sufficient medical resources and there is not sufficient custody observation facility or resource to enable adequate scrutiny.

Q391 Lord Judd: Is cooperation with the NHS all that it should be or is there a resource problem in this area?

Dr Best: I think there are certainly indications that we can point to from our research which would say that there have been significant breakdowns in the relationship with the NHS around individual cases. I think it is hard to draw a clear picture here because there are undoubtedly clear variations and some forces have shown significant improvements and interesting initiatives. I know that, in the Metropolitan Police, two current initiatives, one involving an information-sharing process for the early identification of vulnerable detainees, has been undertaken by a group including the police and, in one particular London borough, there is a joint training initiative where, shortly after recruitment, nurses will spend some time in custody suites and police officers will spend some time in the inpatient psychiatric unit in an attempt to increase their awareness and improve their skills in this area. Whether that is sufficient I think is another matter.

Q392 Lord Judd: Is there anything more that you would like to say at this juncture about the general problems of the mentally ill/mentally disordered people in police custody?

Dr Best: I think that the most striking finding from our research from my point of view is that 50 per cent of those who died in a five-year window of Category 3 deaths in custody could be identified as having a mental health problem or diagnosis. This strikes me as astonishingly high. Given that that is where there was a clear indication of a diagnosis or it was recorded, this is likely to be a significant underestimate. So, we are saying that people with a psychiatric diagnosis of mental health problems, particularly those with a multiple diagnosis, have a massively elevated risk and this accounts for a significant proportion of all deaths in police custody and I would suggest that that alone would indicate that the adequacy of assessment screening and care of such individuals is not up to a satisfactory standard.

Q393 Lord Judd: That is your principal concern. As you begin to bring your very interesting period of work as a body to a conclusion, are there any other strong messages that you would send out on public policy in this area?

Dr Best: I think the other clear areas are around alcohol and illicit drugs. I think we have to be clear in saying that there have been significant problems and Ian mentioned earlier that these are themes that we keep coming back to about the inadequacy of management of drug swallowing and the problems around the treatment of both alcohol intoxicated and alcohol withdrawing detainees. The inconsistent reporting of detox centres and the problems around providing adequate care for extremely intoxicated and often extremely violent people are obviously highly problematic. It is not an easy area to deal with. I think that the numbers of deaths that result from these populations suggest failings in police training and in overall management of these highly vulnerable populations and, as with the mental health populations, I think this is a key area for directing resources.

Q394 Chairman: If we could now turn to the investigation of deaths in custody. The Independent Police Complaints Commission is due to take over as your successor body in just over two weeks' time on 1 April and, as I understand it, following a death in custody, the IPCC will have four options: to investigate the death itself; to manage a police investigation; to supervise a police investigation; or to allow an unsupervised police investigation. Can you think of any case of a death in custody where a police investigation would only be appropriate?

Mr Bynoe: Can I arrive at the answer to that question by answering the question, why involve the police at all? From 1 April, the IPCC will have responsibility, it will have powers and it will have resources to take over and do these difficult investigations itself and it is likely to see its resources deployed on the most high profile controversial ones to start with. That is obviously where it needs to put its resources. However, it needs to hit the ground running very fast. These are extremely challenging investigations that have not been done to extremely high levels of critical performance. You cannot afford to make a mistake when you are investigating potentially a culpable homicide and, at least initially, they must, to an extent, depend upon police investigative skills, techniques and resources which tell them how to investigate potential homicides. In our society, the expertise investigating homicides is, until 1 April, in the police, it is nowhere else. Obviously, the Commission developing over time is going to develop, as I hope it will, as a centre of excellence in the investigation of such deaths. So, in five years' time, I could not say this. I could say in five years, "They now have an investigative resource and that is for the independent investigation of potential homicides by police officers." Initially at least, they must rely to an extent on police resources. Then the question becomes, what police resources and are they to be seconded staff, retired staff from the police and so forth and so on? Initially at least, one has to work on an assumption that even independent investigations are likely to have within them some strata of police investigation skill and that I think is a given and it is for the Commission to answer the questions, "How will you arrange that? What will be the skill mix? What will be the hierarchy of management? What will you choose to put into independent investigation or managed investigation?" Coming now to answer your question directly, in the Authority, we have protocol for supervising members to define the situations when external force investigations should be preferred over internal force investigations and, until the decision of the House of Lords in the Amin case, there was, in a sense, a presumption to stay with the internal force until there were pressing or compelling reasons such as the absence of confidence in such an investigation coming from the family or from the local community to warrant the extra cost, the very possible extra time which an external force investigation brings and the extra complexity of an external force investigation. So, the presumption was largely to say, "Stay with the internal force until you have to go out." Since the Amin case and in the light of the decision of the House of Lords, we have revised the protocol and, if the Authority were to carry on, this would be it and it has already affected decisions we have taken since before Christmas. The presumption is that, in a case involving a death that has occurred in a cell or in a police van or during arrest, before you get in the van or to the cell, an external force investigation should usually be required in such a case, so not an internal force investigation. However, that is only a presumption and it is the presumption which you apply to the facts and the facts could reveal circumstances which said that internal investigation would be sufficient, that is if there are not concerns coming from the two quarters that I particularly mentioned as to the confidence in the objectivity of an internal investigation or if the medical cause of that death is, at the earliest, almost as clear as could be a death that may result from the swallowing of drugs, the ingestion of drugs, that occurred in an ambulance though the person is technically under arrest. These are the sorts of circumstances which could tell you, despite the protocol I have mentioned and despite Amin, that you can go with an internal investigation. Of course, we also have in the Authority - and the Commission will have the same - a collective understanding of how well an internal force investigation might be undertaken. You might choose to stay with one force in circumstances where, in another, you have concerns if they were to do it. They could be concerns that have arisen from past concerns or they could be concerns about whether there would be resources to do the case. So, those are the complex. There are many factors that are at play but I think our answer - and I get to it eventually - is that there can be circumstances when an internal force investigation is probably sufficient and, in terms of human rights law, I think that could be argued successfully.

Q395 Chairman: In your previous answer, you made the statement that the IPCC would have the resources to do the job which it would be required to do. Does that mean that it will have more resources than the PCA has had?

Mr Bynoe: Yes. It is going to have more resources than the PCA has had: I think approximately £23 million revenue for next financial year, and the Authority is working on £5.6 million in the current year, so you can work out the maths. The IPCC has start-up costs which we do not have and they have to meet the creation of a regional structure which we do not have and they have to hire investigators and put them around the country. The business of investigation is extremely expensive. So, I cannot answer the question of how far the resources will go, but they do have significant resources for the investigative side.

Q396 Chairman: You referred just now when you are talking about police inquiries to pressure from families. What kind of priority has been given in the PCA to liaise with families of people who have died in custody?

Mr Bynoe: In the time that I have been at the Authority, which is the last five-and-a-half years, I could chart over that time that practice has changed, partly because in recent years the Government have provided more resources to the Authority to enable us to recruit more Authority members. There is never enough members and I think there is never enough time to adequately meet the needs of families faced with two things: bereavement arising in circumstances they could never have been prepared for, the worst possible event to face; secondly, the investigation process which even for people whose personal experience/professional experience can make them sometimes blasé about them, it is still challenging and I have supervised investigations. So, what it is like for a family on the receiving end of an investigation must be deeply traumatic for them. I make the point that you can never spend enough time on this but, the PCA, over the last five-plus years, has learned the need to spend more time and has learned the need to be more consistent in its relationships with families, particularly those in the most challenging of cases who press the investigators for more information. There are inhibitions on our ability to perform well in this area. A centralised office in Central London does not equip you that well to provide an adequate family liaison for families living beyond one hour's train travel from the office just over the way in Westminster. The inhibitions that law and, to an extent, traditional police practice have placed on us with regard to the disclosure of the emerging picture that an investigation is yielding has created difficulties and I would be the first to admit that they have often caused families to have little or sometimes no confidence in what is going on because they are kept in the dark. Of course, the Commission, in its relations with families, has, at last, an opportunity to make a difference here and they are working to an entirely different presumption, a presumption of openness instead of a presumption of secrecy, and they will have, through the much more elaborate powers that they have - they will still be stuck for resources but the deliberate powers that they have - to open up the process of investigation and make it much more participative. It will never put the family in the driving seat, they are not supervising the investigation, but they have a stake, a most intimate stake, in its outcome in what is going on there. So, I think that the PCA has simply started a process and I would be the last to say that it has been completed. It has to move into the second and really very much more positive stage, I think, in the Commission in its evolving of a different family liaison. The difficulty and the challenge in this area is almost the problem of liaison. The liaison staff are members of an investigative team and so, when they approach a family, they have a number of roles, one of which is to find out things that may be relevant to their investigation. Families frequently reveal, both to inquiries like your own and in relation to supervisions, that they feel threatened by liaison which is also seeking answers to questions. They feel that the member of their family who has died is being blamed for what has happened, that the family is being cross-examined and itself being inquired into. We know that many investigations have legitimate questions that have to be properly answered and fully answered to get relevant background information. It may be highly relevant to the vulnerability of a person in custody to learn aspects of their personal life and their previous history and what they have been doing relatively recently and partly the family relationships even, but families are threatened by this. I think that the challenge for the Commission is to do this difficult task - it is difficult ethically and it is difficult practically because such questions and questioning raise the hackles of people who are devastated by grief - and they have, in a sense, to develop a different form of family liaison. I look forward to seeing how they do it - and I shall myself be a commissioner - because I think particularly in cases like fatal shooting cases, you have the most challenging situation for a family liaison but, in a sense, if it does not work, you have the family operating on one set of tracks with or without legal representation or supporters and you have the investigators on a completely different set of tracks and I think the great opportunity to keep the two together and to have the family having confidence in that investigation has been lost.

Q397 Lord Judd: Would you agree with the thesis that the prosecution of police officers following deaths in custody is surprisingly rare?

Mr Bynoe: No, not entirely because I think I would answer it by saying that firstly death in custody is rare and secondly, if you take the inquiry as ending at the inquest verdict, a critical inquest verdict is rare. Our research that we provided to your Committee gives you the statistics showing in relatively large numbers of cases how few the occasions have been when a jury has brought in an unlawful killing verdict: in the material period, only two; accident associated with neglect, one; and two suicide verdicts where neglect has also contributed. I would be surprised if, in those cases, some form of prosecution of crime or discipline was not seriously considered and, in one unlawful killing case, which is the death of Christopher Alder, of course there was a trial, a trial of misconduct of public office and gross negligence manslaughter. I will choose my language carefully here. I think it is a little simplistic to say that it is a surprise that there are not more criminal prosecutions than do occur. Beyond reasonable doubt is a very high evidential sufficiency test to meet and you have, in some of these cases - not all of them but some - evidential problems. Why? Officers do not cooperate with the investigation. They will not give answers to questions. They will turn up to a supervised PCA investigation and tell the investigators that they are not answering any questions and they will say that it is on legal advice. So, those are compromised investigations to an extent and, come the inquest ---

Q398 Lord Judd: Do you think anything can be done? Do you think that the new arrangements will help?

Mr Bynoe: The new arrangements will bring in a different discipline caution and the silence of an officer for a criminal investigation will not assist him when it comes to discipline because he will be expected to answer questions and inferences can be drawn in the discipline arena and, by silence, if you do not explain your actions and there is a prima facie case, then discipline may follow. So, I think that the facility of silence in the discipline investigation is going to be less available. I could give a much longer and more detailed answer to this and would willingly write to this Committee on this very subject because I think it is a very difficult answer to a question.

Q399 Lord Judd: If I may say so, I am rather impressed that you are, on the one hand, saying, "Be careful of simplistic judgments" but, on the other, you are not being categorical in rejecting ---

Mr Bynoe: It is an evidence-driven system, so let me give you three recent examples and these cases are in the public domain, so I do not think there is any difficulty in my referring to them. I know from personal experience that these have been reported on. The case involving Glenn Howard, which was a death in South London, following the application of restraint. In this case, the jury at the inquest decided that his death had been contributed to by failures by the police. That was despite what the Coroner had wanted. The Coroner had directed them in such a way that they should not technically have brought in such a verdict. They put a rider essentially after the verdict, but they were not having it and felt that it was necessary to signal that they felt something had gone wrong here. The Crown Prosecution Service would not prosecute for the application of force and this was a case involving the old regulations which decided discipline had to be decided on a "beyond reasonable doubt" test. That is very difficult to meet. The officers had answered questions at inquiry but not during investigation. The Police Complaints Authority get the memorandum as they do from the police force recommending what should happen and, in this case, to cut a long story short, after obtaining experienced counsel's advice, the Authority directed the bringing of discipline charges not on the subject of excessive use of force since we were advised, on an examination of the evidence, that there was not enough to give a realistic prospect of conviction, but on neglect of duty. In relation to one aspect of the case, the Authority stuck its neck out and said, "We think the standard has not been met" and that was to do with the way the police staff present had failed to engage Howard even in some minimal verbal communication. He had vomited on the ground and you would think, would you not, that part of being a police officer is to find out why someone might be ill, to find out why they vomited, because their state of health might be relevant. They had not and they had all attended the inquest and been cross-examined and said that they had not asked him anything. One could say that they were doing this almost on autopilot to get Mr Howard and to return him to hospital where he had been detained. So, we directed the bringing of the charge and there were other aspects of the case that we required to be directed. The Authority has no role in presenting the case and the Authority has no role in adjudicating on the case. It is for the police to decide whether that standard of essential first-aid was met and they did not find it proved. In the Christopher Alder case, the Authority directed again the bringing of charges and there the police force decided that the sanctions would be limited to those not involving dismissal or reduction in rank - there were some sergeants. Again, we do not present the case and we do not adjudicate; it went to an external chief officer and all cases were thrown out. These therefore are complicated questions to pose and to answer. In a recent case in the Metropolitan Police area, it was proposed to us that a sergeant had failed to close the cell hatch as a result of which the detainee in the cell had hanged himself. He had been able to get a cord out of the cell hatch, attach it to a part of the hatch handle and hang himself. In that case, the office was absolutely devastated by what had happened. So, the force came to us to say, "We feel that he has learnt enough" but we felt it was essential that he face a discipline hearing, so that the organisation sees that there are some things that cannot be tolerated.

Q400 Lord Judd: I think the Chairman has indicated that it would be helpful if you wrote and what I have heard is that, while you are very wary, as I put it, of simplistic judgments, you have a good deal of anxiety in this area. Can I therefore put one last question. As you wind up your interesting period of service as an organisation and hand over, would you feel like giving the following advice to your successors, that if police performance is to improve, it is absolutely essential that, systematically and consistently, sanctions are taken where there is police culpability?

Mr Bynoe: Yes. One is bound to say that. The current system means that supervision investigations have to come to the Authority to be signed off and, believe me, since I have made these decisions in the contentious cases over the last three years, if there is clear culpability, then discipline will follow. At the same time, one has to realise that encouraging a learning culture sometimes means that it is has to be clear culpability, it has to be gross error, it has to be crass mistakes to warrant the damage to career which discipline can sometimes lead to.

Q401 Mr Stinchcombe: Am I right in thinking that there are also relatively few civil judgments against the police because of a high level of cases which are settled out of court with the offer of a payment of compensation but with no concession as to liability? I do not know if that is accurate or inaccurate.

Mr Bynoe: I am sure that it is the case because it is the case in relation to nearly all civil cases that that is how they are resolved. For all the writs or claims that are started, most are settled in some way rather than going to trial, yes.

Q402 Mr Stinchcombe: Secondly, you gave quite a lot of detail about the difficulty that can be faced, which is something you said, if they are investigated if police officers failed to answer the questions during that investigation and failed to explain then how death occurred. The Home Office has recently tackled an analogous problem where a child dies in the custody of two parents and the parents either refuse to explain or alternatively blame each other and it has responded by creating a completely different offence. Is that something that the Home Office ought to be looking at where a death occurs in custody?

Mr Bynoe: I think we would have to have time to think about that and to come back to you upon it. It is perfectly possible to consider the obligation of a police officer to answer questions and whether or not, slightly off the point you are asking, in and of itself, the failure to cooperate in an investigation is a discipline offence.

Q403 Mr Stinchcombe: Or failure to explain how death occurred.

Mr Bynoe: Or to explain how death occurred, yes.

Q404 Baroness Prashar: Can I seek your view as opposed to evidence-based response to this question: do you think that police forces can learn from the experience of the Prison Service about psychiatric detention?

Mr Bynoe: I think this is very difficult for us to answer. You may know from our written submission that we arranged a conference on restraint issues which involved the Prison Service and the secure part of the psychiatric service and that is simply because we felt that the inter-agency insights were ones which were relevant across the piece and they continued to be, but my knowledge, though I knew a lot about secure psychiatry until 1994, of that current system is very limited and I would have thought that, if mine is, then the police is even less so. So, in answer to I think a question I anticipate you might ask, whether a Standing Committee across the piece is a useful idea to pursue, probably it is, yes. I think that we need to ask ourselves where the pressures needs to be applied and what is significant is that there is not really an inspectorate in relation to custody that is able to apply sufficiently the sorts of disciplines, managerial and otherwise, which may be relevant here. The Inspectorate Constabulary is simply worked off its feet to be able to provide the necessary oversight. You see, I am partly sceptical about a Standing Commission if it is a centralised Westminster-type body that reacts rather than gets out there and checks on whether the good intentions of these sorts of documents, the PACE Code, is actually working in practice. The custody visitors scheme are admittedly largely volunteers but they are out there doing that. They go into custody areas up and down the land day in and day out, they will be out there now, but they are not an inspectorate and they are of course - and I do not want to sound derogatory of it - an organisation with limited powers and limited influence, but that really is what is needed, but I think that a Standing Commission could keep these issues well to the forefront of people in public policy particularly in the respective departments of state.

Q405 Baroness Prashar: Could a similar role by played by the proposed new Commission for Equality and Human Rights?

Mr Bynoe: Yes. In a general sense, one has to say "yes", but the danger will be that, in that organisation, this will be a small part of its many, many areas of interest and responsibilities and the advantage of a Custodial Deaths Commission is that they are only doing that and they concentrate on it and they give a prominence to it which the generalist body does not have. I can give you an example. The Inspectorate could do a thematic study on the subject of custody and the adequacy of the current arrangements in forces for meeting human rights and other standards but I have a feeling that, if I were to suggest that, it would be so far down the list of pressing and other concerns that we would not get to it and that is always the danger with multi-role bodies.

Chairman: Mr Bynoe and Dr Best, thank you both very much for appearing before us today and we look forward to hearing from you on the points about which you have agreed to send us further written evidence. Thank you.