Posted on 17th November 2017
In 2015, the then Home Secretary, Theresa May, commissioned an independent review of deaths and serious incidents in police custody. Dame Elish Angiolini was appointed as the review’s independent chair and the ensuing review – dated January 2017 – was finally published by the Home Office on 30 October 2017.
The evidently long-overdue publication made 110 recommendations. Yet, coming at a time when police chiefs are warning of a ‘perfect storm’ due to staff shortages and budget cuts, those who work at the coalface can be forgiven for being wary as to whether this review will face the same fate as frequent previous reports looking at deaths in state detention. Many will remember the 2015 Harris Review on self-inflicted deaths of young people in prison saw the Government reject 30 of its recommendations.
The report itself makes gloomy reading in respect of topics such as restraint, highlighting failures to learn lessons from previous deaths. The review recommends the need for mandatory national accredited training for police officers in restraint techniques and emphasises the need for recognition and understanding that all restraint can cause death. This would bring to an end individual police forces choosing how and to what extent they deliver such training.
As the report examines there is a need for police officers to upskill in de-escalation techniques. It is true of many of the civil cases Hodge Jones & Allen brings against the police that the situation could have been avoided had the police tried to de-escalate the situation first, rather than resorting to physical force first. Therefore, we must have accountability where restraint is found to be unnecessary, disproportionate or excessive, and restraint equipment should be strictly limited and subject to robust monitoring. The report notes there is a danger that the use of such equipment has become routine.
The report also explores how we can better ensure lessons are learnt in the future so as to reduce the number of avoidable deaths. As someone who represents bereaved families following deaths in state detention, it is always of paramount importance to them to ensure that no other family will someday have to experience what they have had to.
As such, post death investigations must be robust and thorough, and allow for families to be properly engaged in the investigation. The review recommends the development of a ‘Deaths and Serious Injuries Unit’ within the IPCC. It also calls for former police officers to be phased out as IPCC lead investigators and that principal officers or police witnesses to incidents should not confer prior to producing their initial accounts. Further, that there should be a nationally funded National Coroner Service to address persistent inconsistency of service and the Chief Coroner should consider issuing guidance on what constitutes disclosure of relevant information.
Of particular interest to me is the emphasis on families being properly involved in such investigations which the report emphasises can only be achieved through free, non-means tested legal advice and representation from the earliest point following the death throughout the inquest process. The Government’s response commits to review the existing guidance so that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest following a suspicious death or suicide in state detention. However, given funding can be obtained for cases where there is an arguable breach of Article 2 of the European Convention of Human Rights, which certainly covers suspicious deaths or suicides in state detention, and that the Legal Aid Agency has the power to waive the usual financial eligibility rules for public funding in these cases, introducing such a ‘presumption’ is not going to rectify the problems with the system.
The main issue is that the current system of public funding places too many hurdles in front of families at a time when they are coming to terms with their loss. Extensive evidence is required of families’ financial circumstances, it can be a lengthy process and it does not properly take into account complicated family situations. Further it can be miserly in respect of items such as expenses to allow families to attend the inquest, for example, allowing the travel expenses or hotel accommodation to attend the inquest to only one family member. This can lead to families disengaging with the process exactly when they need assistance the most.
Another interesting recommendation is the need for an independent ‘Office for Article 2 Compliance’ tasked with the collation and dissemination of learning, implementation and monitoring of that learning, and the consistency of its application at a national level. This is incredibly important. Currently, there is much empty rhetoric in the idea of learning lessons as there is no body or organisation to ensure recommendations made in investigations are implemented and that responses to Coroner’s Prevention of Future Death reports address the issues raised. It is also important that learning from an inquest in one part of the country is then shared nationally so that a similar death does not occur subsequently elsewhere.
As with many of the review’s recommendations, this should apply to all deaths in state detention, not just those in police custody. Learning should also be shared across different custodial settings. The report recognises that there has been a significant reduction in the number of self-inflicted deaths in police custody to the extent they are now very rare and at a time when such deaths occur in significant numbers in the prison estate any learning which can be shared is important.
The importance of this review cannot be underestimated, but as Deborah Coles, the director of INQUEST said at the time of the report’s publication: ‘The value of this report must ultimately be judged by the changes it brings about.’ Perhaps coming at the same time as the publication of Bishop James Jones’ review of the Hillsborough families’ experience, which makes a number of similar recommendations and the parliamentary support for Seni’s Law to prevent mental health patients being restrained, we can allow ourselves some optimism.
This article first appeared in The Justice Gap, November 2017.
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