Joint Committee On Human Rights Minutes of Evidence


Examination of Witnesses (Questions 380 - 399)

MONDAY 15 MARCH 2004

MR IAN BYNOE AND DR DAVID BEST

  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 expert areas, 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 early intervention although this is 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% of the police surgeons had the section 12 qualification and only 24% 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 the 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 resources 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%. 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 role 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 files 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 be 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, self-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 an 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 on 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 only would 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 a 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. There could be concerns that have arisen from past concerns or they could be concerns about whether there would be resources to do the case. 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 liaison 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 officer 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.


 
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