Independent review into deaths and serious incidents in custody

An independent review into deaths and serious incidents in custody will need to challenge difficult and uncomfortable issues if it is to lead to real systemic change, prevent further deaths in custody and restore public confidence in the police.

Last month, the Home Secretary, Theresa May, announced that Dame Elish Angiolini DBE QC will be chairing an independent review into deaths and serious incidents in police custody. Plans for the review were first announced by Theresa May back in July in a speech she gave in South London looking at the problematic relationship between the public and the police. She explained that the review will attempt “to transform the relationship between the public and the police” which has been damaged by high-profile cases of deaths in custody in the media and allegations of wrongdoing by the police.

The terms of reference for the review have also been published. They are:

• to examine the procedures and processes surrounding deaths and serious incidents in police custody, including the lead up to such incidents, the immediate aftermath, through to the conclusion of official investigations. It should consider the extent to which ethnicity is a factor in such incidents. The review should include a particular focus on family involvement and their support experience at all stages.
• to examine and identify the reasons and obstacles as to why the current investigation system has fallen short of many families’ needs and expectations, with particular reference to the importance of accountability of those involved and sustained learning following such incidents.
• to identify areas for improvement and develop recommendations seeking to ensure appropriate, humane institutional treatment when such incidents, particularly deaths in or following detention in police custody, occur. Recommendations should consider the safety and welfare of all those in the police custody environment, including detainees and police officers and staff. The aim should be to enhance the safety of the police custody setting for all.

There had been calls for a review of this nature for some time, with concerns growing following statistics released by the Independent Police Complaints Commission (IPCC) in July this year which revealed that 17 people had died in or following police custody in 2014-15, the highest rate for the past five years. The statistics show that ten of the 17 people that died had been restrained by officers before their death. It is therefore reassuring that the terms of reference include a necessary examination of the procedures and processes employed in the lead up to such incidents, particularly given that investigations into deaths in custody often conclude that they were avoidable.

Police restraint is one of the most controversial police tactics because of its causal association with deaths in custody. Recent high profile examples include the deaths in police custody of Sean Rigg, in 2008, and Olaseni Lewis in 2010. Both had been restrained by officers prior to their deaths and their families have played an instrumental role in securing this review following meetings with the Home Secretary.

We regularly represent the families of those who have died shocking and often preventable deaths while restrained in police custody. We are currently representing the family of Leon Briggs who was restrained and taken into custody at Luton Police Station under section 136 of the Mental Health Act where he later died. Investigations are ongoing in this matter but the case also raises issues relating to restraint tactics, ethnicity and mental health.

Theresa May explained that she hopes the review will challenge the “evasiveness and obstruction” of authorities that is felt by families following deaths in custody. This obstruction may be experienced as a result of investigative bureaucracy and delay which prevents families from finding out the answers necessary to allow them to move on.

Our experience of working with bereaved families is that almost without exception they suffer evasiveness and obstruction from within the system. There are also other significant obstacles in their way when seeking answers. Funding is a major problem, both in terms of the availability of Legal Aid funding in the first place and then the arduous and intrusive experience bereaved family members need to go through to prove they are financially eligible for legal representation for an inquest. Even when funding is granted, there is still the question of equality of arms, since the Legal Aid Agency puts tight restrictions on the amount of work that can be done, the level of barrister or cost of the expert to be instructed. Conversely, where state authorities are involved in a death they are automatically provided with their own legal team, with significant access to resources.

The review’s terms of reference do not cover the question of funding, and we would argue this is a question which needs further urgent consideration in the context of concerns about the availability of public funding more generally.

The terms of reference do however, appear to recognise the fundamental importance of ensuring accountability of police officers who fail in their duties. This is not only necessary in order to meet the expectations of families affected by deaths in custody, but also the expectations of the public as a whole. Article 2 of the European Convention on Human Rights (ECHR), the right to life, is a vital tool that we use to ensure accountability by challenging the police and other authorities when they fail to protect people in custody. This convention right is enforceable through the Human Rights Act 1998 and this legislation is essential in order for people to bring claims against state authorities when there are failings. All too often official investigations make recommendations for improvement but structural problems persist and the number of deaths in custody remains at a wholly unacceptable level.

The charity INQUEST which provides specialist advice and support to families bereaved by deaths in custody will be playing a formal role in the review with their co-Director, Deborah Coles, appointed as a special advisor to the chair. It is thought that INQUEST will use their expertise to facilitate the involvement of families in the review through family listening days. The involvement of families that have been affected by deaths in custody will be invaluable to the review and the Home Secretary pledged that it will have the experiences of those families at its heart.

It is difficult to say whether this review will be as hard-hitting as is necessary. Dame Elish certainly appears to have relevant experience in asking difficult questions and working with victims affected by failures of state authorities having conducted an independent review into the investigation and prosecution of rape in London which was published earlier this year. If the Home Secretary really does want to restore public confidence in the police this review will need to challenge difficult and uncomfortable issues in order to lead to real systemic change and prevent further deaths in custody.