Tuesday, 10 March 2015

Deaths in Prisons

Open Democracy 10th March 2015 asked - "Could Ministry of Justice and Grayling be prosecuted for manslaughter over prison suicides?"    The Prisons and Probation Ombudsman has repeatedly expressed concerns about the number of suicides of persons in detention - see his reports.   This blog - 26th February 2015 "A most serious report" - looked at a report by the Equality and Human Rights Commission - Preventing deaths in detention of adults with mental health conditions.

Would it be possible to bring such prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007
The offence of Corporate Manslaughter is defined in section 1
and it applies to those "organisations" set out in section 1(2).  They are -  (a) a corporation; (b) a department or other body listed in Schedule 1; (c) a police force; (d) a partnership, or a trade union or employers' association, that is an employer.  Thus, a government department (or its Minister) are distanced from possible prosecution unless they are listed in Schedule 1.  A number of government departments are listed in Schedule 1 but the list does NOT include the Ministry of Justice.   

Section 2  deals with the meaning of "relevant duty of care" and section 3 states that public authorities do not have a "relevant duty of care" in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests.  See further the Explanatory Notes on section 3.

For those reasons, the Ministry of Justice and its Minister appear to be safe from prosecution under this Act.

With regard to those organisations who are responsible for the day-to-day management of prisons and prisoners (or others detained), there will be a duty of care under the Act though the difficulties should not be underestimated.  The Crown Prosecution Service offers a more detailed summary of the Act.

Many of the problems in the Act were highlighted by LIBERTY when the Bill was passing through Parliament.  LIBERTY pointed out that whilst the Act removed "Crown Immunity" (see section 11)  it was effectively re-introduced by the exemptions.

Therefore it must be concluded that the place to hold the Ministry of Justice and its Minister to account is Parliament and that, of course, is precisely one of the constitutional functions of Parliament.  This is not to say that Parliament has ignored deaths in custody.  For example, INQUEST gave this evidence to the Justice Committee in 2013.  However, it would be good to see the full glare of Parliamentary scrutiny brought to bear on this issue.   Little hope of that however given that the present Parliament will be dissolved on 30th March.

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