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Deaths in Custody

Updated: 28 April 2020|Legal Guidance, Violent crime

What is a 'death in custody'?

A 'death in custody' is a generic term which refers to deaths of those in the custody of the State. A non-fatal shooting or severe and extensive injury is not sufficient; there must be a death. However, a death in a road traffic incident, even if the person who dies is under arrest and heading towards a police station in a police car, is not a death in custody.

The deceased must have been 'in custody'. The following list illustrates some circumstances that may apply to this definition:

  • whilst under arrest in a police station;
  • whilst held as a prisoner in a prison or police station;
  • whilst under arrest by a police officer;
  • whilst being detained for the purposes of a search;
  • whilst in other lawful detention e.g. immigration detention (but not where the victim is compulsorily detained under the Mental Health Act 1983 except where the person is still in police custody before being transferred to a medical facility);
  • whilst a child or young person is in custody for their own protection;
  • as a result of being shot by a police officer; or
  • following any other 'contact with the police' where there may be a link between the contact and the death.

The identity or employment of the person who caused the death is immaterial in all cases except fatal police shootings. For example, if a person dies as a result of grossly negligent medical treatment by a police doctor whilst in custody, that is still a death in custody.

A suicide can also be a death in custody, as can for example, a death following a fight between prisoners, if there is an indication that a prison or other officer or the prison has negligently failed to prevent the death.

Death following contact with the Police

'Death following contact with the police' is a broad category, covering many possible scenarios. It is not limited to contact in the sense of physical touching or assault but includes all cases where a person dies following some kind of interaction with the police. For example:

  • a custody officer releases someone on bail from a police station whilst they are suffering from an undiagnosed illness from which they later die;
  • a homeless person is found frozen to death after the police checked on their welfare;
  • a person suffers a fatal heart attack running away from a police officer who is trying to arrest them;
  • a death that happens whilst in transit from police detention to a medical facility, whether being transported by the police or an ambulance;
  • where the police attend a siege situation and the besieged person kills themselves or a hostage.

Prosecutors may also need to consider corporate manslaughter offences where a death has occurred in 'custody' and where the organisation owes the detainee a relevant duty of care. Where a person is detained in an institution described in section 2(2) of the Corporate Manslaughter and Corporate Homicide Act 2007, which includes Border Force customs facilities, then the organisation owes the detainee a relevant duty of care section 2(1)(d).

Prosecutors should refer to the guidance on Corporate Manslaughter for further information; if the case is a death in custody it should be referred to Special Crime and Counter-Terrorism Division (SCCTD) for handling regardless of other handling arrangements.

In cases where there is any doubt regarding police contact, prosecutors should refer them to the responsible Special Crime Unit Head within SCCTD.

Handling of death in custody cases

All deaths in custody cases are handled and prosecuted by SCCTD in London or York. As a general guide, Special Crime London deals with all cases in the south of England and Special Crime York deals with all cases in the north and Wales. All cases should be immediately referred to the Unit Heads responsible.

Area prosecutors should not give the police any sort of preliminary advice or guidance. If the police contact an Area prosecutor at night or at the weekend as a result of being unable to reach either of the SCCTD Unit Heads, general advice on scene preservation can be given but prosecutors must ensure they do not provide any further advice.

Area prosecutors must not under any circumstances make a charging decision. Although it might be theoretically possible, circumstances where there is a need for an immediate decision under the Threshold test are extremely unlikely to arise.

Who investigates deaths in custody?

If a person has died whilst in the custody of the State it is important that all circumstances of the death are examined. There must be an independent and thorough investigation that is capable of leading to the identification and punishment of any person or company that may have been criminally responsible for the death.

If the death took place in a police station or following contact with the police, the Independent Office for Police Conduct (IOPC) will usually investigate, or alternatively manage or supervise the investigation by the police. If the death has taken place in a prison or in other non-police settings, the police will investigate.

Information about the IOPC can be found on its website.

Who advises on charge and prosecutes death in custody cases?

All deaths in custody are dealt with exclusively by senior and experienced prosecution lawyers in SCCTD. The prosecutor will have had no previous dealings with anybody who may be a suspect in the case and is independent of the police.

It will be the task of the prosecutor to advise the investigators and in due course, if a charging decision is requested by the investigator, to consider all the evidence and decide whether or not there is sufficient evidence to prosecute any person or organisation involved in the death and, if so, if it is in the public interest to do so, as outlined in the Code for Crown Prosecutors (the Code). The reviewing lawyer will usually only decide whether charges should be brought when the IOPC has concluded any investigation it may be conducting into the officer who fired the fatal shot, or the force which planned the operation.

There is an extensive quality assurance process for approving charging decisions for these cases. Ultimately, every case where a charging decision is made by a prosecutor is considered personally by the Director of Public Prosecutions (DPP), although the responsibility for the decision always remains with the prosecutor who makes it.

As part of this quality assurance process the DPP personally approves or 'tickets' lawyers who are new to death in custody cases to deal with them.

SCCTD agreed a Memorandum of Understanding with the Independent Police Complaints Commission (now the IOPC) on working arrangements and joint guidance on the pre-arrest and pre-charge processes. The documents emphasise that investigations should be completed as soon as reasonably practicable and for there to be early involvement by the prosecutor in all appropriate cases.

Self-defence and Reasonable Force

The police, no matter what situation they are faced with, are subject to the same laws of self-defence, and the use of reasonable force, as members of the public.

Section 76 of the Criminal Justice and Immigration Act 2008 provides clarification on the operation of the existing common law in relation to self-defence, and the defence provided by s 3(1) of the Criminal Law Act 1967 (use of force in the prevention of crime or making arrest). Prosecutors are referred to the CPS legal guidance on Self-Defence and the Prevention of Crime for a more detailed analysis of the law as it relates to self-defence and use of reasonable force.

Where fatal police shootings are concerned, the reviewing lawyer will be asked to consider whether the actions of the officer concerned were reasonably necessary in the circumstances as the officer honestly believed them to be. However, the courts have indicated that officers dealing with these dynamic and fast-evolving situations should be judged with regard to the overall circumstances, without placing undue weight in hindsight upon minute dissections of time, (An Officer of the Metropolitan Police) v Holland (Chairman of the Azelle Rodney Inquiry) [2014] EWHC 454 (Admin)).

CPS contact with families

Prosecutors will contact the bereaved to explain their role in the case and offer an initial meeting, where appropriate. This will usually take place at a CPS office.

The prosecutor will explain the respective roles of the investigator and the prosecutor, the offences that are under consideration (for example murder or gross negligence manslaughter) and what has to be proved for each offence. The prosecutor will also explain that they might not be able to discuss the details of the evidence as it is so far known because this may affect any future trial. Whether or not they can discuss the evidence will depend on the circumstances of the case. The prosecutor will also give the bereaved copies of leaflets that explain how decisions are reached under the Code and the process for dealing with deaths in custody.

Because of their importance, complexity and reliance on expert evidence these investigations can be very lengthy. As a result, there may be quite a long time (months rather than weeks) between the meeting with a bereaved family and the decision whether or not to prosecute an individual or organisation.

Once the investigation is complete, the prosecutor will usually offer a second meeting for the bereaved to raise any issues that particularly concern them and which may not have been known about at the time of the first meeting. Often, a second meeting may not be necessary if all issues have already been discussed. However, the bereaved are always welcome to raise anything that they want with the prosecutor, whose contact details they will be given.

If matters are taking longer than expected, the prosecutor may also write to the bereaved to keep them updated. They may also offer a further interim meeting, depending on the circumstances of the case.

When the decision as to whether there should be a prosecution has been made, the prosecutor will write to tell the family the decision. If the decision is to prosecute the letter will confirm who is to be charged for what offence. Only basic information is usually given at this stage, as providing further details about why the decision was made might affect the trial. If the decision is not to prosecute, the letter will provide more details, explaining how and why the prosecutor came to the decision.

The prosecutor will again offer a meeting to give further explanations, either of what will happen next in the prosecution or about why there is to be no prosecution. A decision not to prosecute will not be changed as a result of this meeting. A meeting will also be offered if, after a decision to prosecute, the prosecutor decides to stop the prosecution, withdraw one or more charges or make a substantial alteration to the charges.

Bereaved families may bring their lawyer or a friend to the meeting, which is perfectly acceptable.

There is no obligation on the bereaved to attend any meeting if they do not want to.

Prosecutors may also find it useful to consider the Guidance on CPS Service to Bereaved Families.

The Coroner

A coroner is a doctor or lawyer specifically appointed to conduct inquests following the reporting of a death. The coroner will have a death reported to them if it has been violent or unnatural, sudden deaths where the cause is unknown and those deaths occurring in 'custody' as defined in this guidance.

The Inquest

Where criminal proceedings are being considered in relation to a death in custody (under murder or manslaughter), the coroner will open an inquest and then adjourn it until the outcome of the proceedings is known.

If the prosecutor has decided not to charge the suspect, he/she should notify the coroner, providing an explanation on why this decision has been reached; the coroner will then arrange the inquest date.

If a decision is taken to charge the suspect with murder or manslaughter, the coroner will adjourn the inquest until the outcome of the criminal proceedings is finalised. However, if the suspect is charged with an offence other than that of murder or manslaughter, the coroner may hold the inquest before or in parallel to the criminal proceedings at his/her discretion.

The prosecutor does not have a formal role at an inquest, but may be present at the hearing to determine whether any new or relevant evidence is aired during the proceedings. Once the inquest is finished, the prosecutor may re-consider all the evidence then available, including that heard during the inquest.

Further reading

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