Policy Implications and Academic Perspectives

Introduction

Custodial deaths are considered to be a serious issue in the UK and the seriousness with which this issue is treated can be gauged by the fact that the government established an independent review of custodial deaths in the UK in 2015, which published its report in 2016 entitled, Report of the Independent Review of Deaths and Serious Incidents in Police Custody (Angiolini, 2017). The independent review was given the mandate to consider the events leading up to custodial deaths, existing protocols and procedures designed to minimise the risks of custodial deaths in the institutional places of custody, the investigations that ensue in such case, and even the manner in which the families of the deceased are treated at every stage of the process (Angiolini, 2017). Therefore, the issue of custodial death is an important one in terms of policy as well as academic research. With regard to the latter, some scholars have taken a view that the increase in the numbers of custodial deaths point to an increasingly authoritarianism in the state (Pemberton, 2005). In fact, Pemberton (2005) state that the “criminal justice system is increasingly being used as a means to remove the ‘unwanted elements’ from our increasingly unequal social system. The police as the front line agency in the criminal justice system are heavily implicated within this process” (p. 28). While this may be an extreme view of death in custody, which paints the police as carrying out some kind of extermination of criminal elements, which may not be correct, the more important point raised is that there is implication of the police at some level. This implication may come from negligence, or lack of procedures while keeping people in restraint, which may lead to death or harm to the prisoner.

There are many controversial aspects of custodial deaths, predominant amongst which is the issue of race and its impact on how police treat suspects and those in detention. This is one of the issues that will be studied in depth in this dissertation along with other issues that are specifically related to the problems of death in custody in the UK and the use of law and regulations to minimise death in custody.

Defining ‘death in custody’

Custodial death is defined as deaths of inmates in jails attributed to the conditions in the prison environment (Ruiz, et al., 2014). This is a comprehensive definition of custodial death. Admittedly, there has some scholarly debate on how custodial death should be defined. On one hand, there is a call to define custodial death narrowly, because broad definitions of custodial death tend to include deaths that occur in institutional places of custody, such as, lockups and prisons, as well as deaths that occur during interrogation (Dalton, 1999). Then there is also the case of custodial suicides and the issue on whether such deaths should be counted as custodial deaths, as the causes of suicide may be unrelated to the prison environment as such (Dalton, 1999). In the UK, statistics on custodial deaths compiled by the Ministry of Justice also take into consideration the deaths that occur due to self-harm (Ministry of Justice, 2017). Inquest (2019) defines deaths in police custody as those deaths that take place “while the individual is in contact with police, whether or not they have been arrested, or that happen shortly after that contact. The death may not necessarily have occurred inside a police station.” Moreover, Inquest (2019) specify that self-inflicted deaths following contact with police or deaths as a result of domestic violence where the police have been involved are not included in their compilation of statistics on custodial deaths.

In the UK, the number of people who died in police custody from 1990 to 2018 stands at 1649, of which 14 percent individuals belong to the Black and Ethnic Minorities (Inquest, 2018). Inquest reports that there have been 1713 deaths in police custody since 1990 to 2019 (Inquest, 2019). There may be some discrepancy between the statistics compiled by Inquest and those compiled by the Home Office or other government sources as the figures compiled by Inquest are derived from monitoring and casework and are independent of the Home Office, the Independent Police Complaints Commission (IPCC) and other government agencies (Inquest, 2019). The data collected by Inquest (2019) also breaks down custodial deaths into categories based on cause of death. There are four principal categories, which are, death in custody, death during pursuit, RTI (road traffic incident), and shooting (Inquest, 2019).

It would be relevant to point out that the government itself does not consider RTI deaths as deaths in custody even if the police is involved (Crown Prosecution Service, 2019). The Crown Prosecution Service (CPS) defines death in custody as death that occurs when the deceased is in custody (Crown Prosecution Service, 2019). To clarify this further, the CPS notes that such death could happen when the deceased was under arrest in a police station; held as a prisoner in a prison or police station; under arrest by a police officer; in detention for the purposes of a search; in other lawful detention like immigration detention; in custody for their own protection (in case of young children or young persons); shot by a police officer; or in other 'contact with the police' (Crown Prosecution Service, 2019). Other than fatal police shootings, the identity or the employment of the person who caused the death is immaterial, which means that in cases of negligence as well, death will be considered to be death in custody (Crown Prosecution Service, 2019). For the purpose of CPS, even suicides are considered death in custody, if the prison has negligently failed to prevent the death (Crown Prosecution Service, 2019). This is at variance with the approach taken by Inquest in their own methodology for computing death in custody.

The epistemology related to death in custody can be problematic because death when in contact with the police or following contact with police is a broad category and there are different scenarios that can be covered in this broad category (Crown Prosecution Service, 2019). Death following contact with the police is not just death that happens due to physical touching or assault but also cases where interaction with the police may also lead to the death of the person. The CPS notes that such interaction may also include cases where the custody officer has released someone on bail and that person may be suffering from an undiagnosed illness which may later lead to death (Crown Prosecution Service, 2019). Another example given by the CPS is where death of a person occurs because the deceased suffered a fatal heart attack during pursuit (Crown Prosecution Service, 2019). These examples do indicate the difficulty in defining death in custody and the epistemological challenges involved in creating a better understanding of what death in police custody may mean.

A recent case of such a death can be noted in the death of Rafal Sochacki in 2017, who died due to heatstroke in the court cell, which was not ventilated (Mohdin, 2019). The day on which Rafal died in the court cell was one of the hottest days in the years (Mohdin, 2019). The later inquiry into the death revealed that Sochacki was taken to the court in a van in which he spent 50 minutes without air conditioning while it was stationary, and then he was put in a cell, which also did not have air conditioning (Mohdin, 2019).

Death in police custody or police detention: The issue of race

Race is an important factor of consideration in context of custodial deaths because death in custody and the numbers of custodial deaths of Black and Ethnic Minority prisoners has been highlighted in research as well as popular imagination. It is generally believed that the higher numbers of deaths in police custody are of those who belong to the Black and Ethnic Minorities communities. The issue of death in police custody is controversial because despite there being safeguards and regulations and legislations, there have been cases where death in custody has happened in the UK. There are also patterns of contact between BME individuals and the criminal justice system, which often point at the presence of institutional racism as explained below:

“This pattern of mistreatment and ‘over-policing’ is also evident in the use of police violence. The first people to die as a result of the introduction of the long- handled baton and CS gas were black. Deaths in police custody show the same pattern too. Police assaults against black people, or use of excessive force, have been so widespread that an increasing number of civil actions have been taken out against the police, and in particular against the Metropolitan Police. The annual amount of compensation paid out by the Met increased from £393,000 in 1986 to £1,560,000 in 1995. The damages awarded to one man in March 1996 were a record £220,000” (Beynon & Kushnick, 2009, pp. 232-233).

The issue of race and custodial death was also raised in the case of death of Zahed Mubarek because the deceased was attacked in the prison by a known racist as in the ensuing enquiry into the case the fact that the killer was a known racist became a significant point of discourse (Moss, 2006). While the Zahed Mubarak case is not a typical case of custodial death in which the police or authorities are involved, it is a case that does reflect on the conditions in the prison, which may lead to the death of prisoners in custody. In this case, the issue of race and police behaviour became conflated because the police authorities were well aware of his racist opinions and violent tendencies but they did not take appropriate actions to minimise risk to the deceased (Moss, 2006). Moreover, the institution in which the custodial death occurred, Feltham YOI, had a history of bullying and deep seated racism, which meant that the prison authorities had not responded appropriately to the problems which led to the continuation of conditions in which minority prisoners were at risk.

In the UK, disproportionate representation of Black and Asian Minority Ethnic (BAME) people in the criminal justice system remains a relevant and controversial issue (Okoronkwo, 2008). Even the Lammy review in 2017 has stated that the “disproportionate representation of Black, Asian and Minority Ethnic (BAME) individuals starts at the beginning of the CJS journey” (Lammy, 2017, p. 17). There is a negative perception in the BAME communities with regard to the police because the police is the first point of contact between the individual and the criminal justice system (Lammy, 2017). Policing tactics, and in particular disproportionate use of Stop and Search powers by the police have created an impression in the BAME community that there is institutional racism in police forces (Lammy, 2017, p. 17).

The government has also acknowledged that there is “significant overrepresentation of Black, Asian and minority ethnic (BAME) individuals in the criminal justice system” (Angiolini, 2017, p. 15).

There is no dispute on the fact that BAME communities are significantly overrepresented in the prisons and this fact is confirmed in recent times (Angiolini, 2017; Lammy, 2017). However, it is a matter of concern that there is also evidence of disproportionate deaths of BAME people in restraint related deaths (Angiolini, 2017). Given that there is already negative public sentiment, especially in the BAME communities regarding racism in the police forces, custodial deaths involving BAME can become controversial and provocative within the communities (Angiolini, 2017).

The issue of whether or not institutional racism exists in the police forces has been dealt with already in other research in the context of another controversial issue, stop and search operations (Bland, et al., 2000). Research indicates that BAME communities are subjected to more stop and search orders, which leads to the perception of a racially influenced police force (Bland, et al., 2000). A study involving young male participants from the East London Borough, found that younger people in the locality were more hostile to the police because of their negative perception of the stop and search operations, which were considered generally to be unfair and arbitrary (Hollsworth & Ransom, 2008, p. 38). Due to such general perceptions of the police as a racially motivated force, deaths in custody involving BAME people become controversial and increase doubts about the role of the police and doubts about the racial motivations or reasons that may have led to the deaths of the prisoners.

IPCC and Inquiries into Custodial Deaths

The Independent Police Complaints Commission (IPCC) conducts inquiries into cases where death in custody have occurred. However, the role of IPCC has often been criticised. This section will discuss the IPCC, its powers and functions with relation to inquiries into custodial deaths. Examples of actual custodial deaths and consequent IPCC inquiries are used to analyse the role played by IPCC and the extent to which it has managed to impact or control the rate of custodial deaths in the UK.

At the outset, a serious critique of the IPCC and the general inquiry system into custodial deaths may be noted here in the observation of the Report of the Independent Review of Deaths and Serious Incidents in Police Custody, which mentions that out of the eight prosecutions of police officers in connection with custodial deaths in the preceding 15 years, not one prosecution ended in a conviction of the police officer concerned (Angiolini, 2017, p. 10).

The case of Mark Duggan, a 29 years old man with three small children who was shot by the police exemplifies the controversies related with custodial deaths, one of these being the perceived racialized nature of custodial deaths. The Independent Police Complaints Commission (IPCC) conducted an inquiry into the incident but even the inquiry was criticised as it gave a clean sheet to all the involved police officers on the ground that Duggan pointed a gun at the police while the inquest jury concluded that Duggan had thrown the gun away before he was shot (Slater, 2011). Mark Duggan’s case has led to the reinforcement of the perceptions of institutional racism and its links with how BME suspects are treated by the police when they are in custody or detention. These perceptions are often backed by evidence in literature that reveals that young minority ethnic groups are continually antagonised by the police and that the latter treats people from minority communities as offenders and suspects due to their race (Briggs, 2012).

The Christopher Alder case is also relevant here as this case became a subject of inquiry in the UK, and then in a petition before the European Court of Human Rights (Brayne, 2014). Christopher Alder was a Black 37-year old former British army paratrooper who was assaulted outside a nightclub and later arrested by the police on the charges of breach of peace (Brayne, 2014). One of the controversial aspects of this case is that the CCTV footage shows a sober Christopher getting into the police van outside the nightclub but being dragged out from the van at the police station some time later (Brayne, 2014). The question of why Christopher had to be dragged out of the van became more controversial because Christopher died on the floor of the police station and post mortem revealed that the head injury sustained by Christopher outside the nightclub did not kill him (Brayne, 2014). This led to an inquiry into the possible negligence by the police officers and the eventual apology by the British government to Christopher’s family in the European Court of Justice for their failure to prevent his death and conduct a fair inquiry into his death (Brayne, 2014). The IPCC inquiry was called but failed to satisfy on account of being fair to the victim as one of the criticism of the IPCC in custodial deaths is that it can be partial towards the officers (Hargreaves, 2014).

The issue of police custodial deaths is one of the major reasons behind various instances of radical reforms (Somers, et al., 2014). The IPCC is one these reforms. However, the actual cases and inquiries may indicate that the IPCC has not been successful in holding the police officers to account for custodial deaths. The recent Report of the Independent Review of Deaths and Serious Incidents in Police Custody, specifically notes that the IPCC has been seen as ineffective, stating:

“There is still a view among many families of those who have died in custody and of campaigners, lawyers and police officers who spoke to this review that the IPCC does not always feel truly independent of the police or of police culture.

This is in part because of the numbers of former police officers employed by the IPCC. If an independent investigative body is to succeed, it must have the trust of families, and the full cooperation of police forces” (Angiolini, 2017, p. 7).

With reference to the IPCC, the independent review has made some suggestions that can be implemented to improve the investigations into custodial deaths (Angiolini, 2017). First, it is suggested that ex–police officers in the IPCC should be phased out as lead investigators and even if the IPCC is of the opinion that their expertise is required, then such officers may only act as formal consultants or as a training source (Angiolini, 2017). Second, it is suggested that the resources provided to the IPCC should be given the highest priority, as there is a need to increase the resources and expertise of the organisation (Angiolini, 2017). Third, delay has been considered to be one of the most important issues that is coming in the way of effectiveness of IPCC, for which it is suggested that IPCC not use complexity and seriousness of investigations as excuses for protracted investigations (Angiolini, 2017). To improve this condition it is suggested that there be a creation of a specialist Deaths and Serious Injuries Unit within the IPCC staffed by senior and expert officers from a non-police background, so that delays can be addressed (Angiolini, 2017). Fourth, it is suggested that the IPCC must attend to the scene of police custody death in a timely manner as the initial hours following a death are crucial and can set the tone for the ensuing investigation through proper evidence preservation and collection (Angiolini, 2017). The report sums up the approach that the IPCC must take in such cases as follows:

As death in police custody may at times be related to mental illnesses, it is also suggested that police custody staff be provided training so that they are able to identify and treat suspects who may be traumatised by arrest and investigation, or who may have mental health issues (Phillips, et al., 2016). There is also a suggestion for improving the liaisoning between the police and mental health services (Phillips, et al., 2016).

PACE – Excessive Force

The changes or reform of laws relating to contact between individuals and the criminal justice system have been called by the incidents of excessive use of force by police at times. One of the legislations that is an important part of this reform is the Police and Criminal Evidence Act 1984 (PACE 1984), which was enacted to provide the application of due process of individuals who are arrested or detained (Turpin & Tomkins, 2011, p. 39). PACE 1984 provides important safeguards for the protection of the rights of suspects. The PACE 1984 is an important part of the human rights approach that is extended to the suspects and detainees. As such, the PACE 1984 provides the framework within which polcie powers are to be exercised with respect to treatment of the suspects and detainees (Fenwick, 2014).

The issue of custodial deaths has refused to die down even after the enactment of PACE 1984. Custodial deaths have happened even after the enactment of this legislation. Moreover, the race angle of custodial deaths has continued to attract attention as is noted below:

“The Institute of Race Relations identified a pattern of almost seventy deaths of black people in custody between 1987 and 1991. Inquest, a non- governmental organization working directly with the families of those who die in custody, identified thirty-seven Black custodial deaths between 1991 and February 1996 of which fourteen were in police custody. The Institute of Race Relations evidence to the Stephen Lawrence inquiry indicated that 67 per cent of people knew some one who had experienced physical abuse by a police officer; 40 per cent had personally experienced racial abuse from an officer; 78 per cent believed that police treated a crime in which the victim was white more seriously than one with a black victim; and 64 per cent of black inmates said they had witnessed an average of eight incidents over the same period” (Kushnick & Kushnick, 2003, p. 242).

One of the crucial reasons for death in custody is related to restraint techniques practiced by the police (Angiolini, 2017). With regard to this, it has been noted in the Report of the Independent Review of Deaths and Serious Incidents in Police Custody that there needs to be the wider recognition and acting upon the fact that all restraint may potentially lead to death (Angiolini, 2017). Therefore, police officers have to be cognizant of the reality that the restraint tactics employed by them can lead to a heightened physical and mental state in which the an individual’s system may be overwhelmed and death or serious injury may ensue (Angiolini, 2017). As an example, the report mentions positional asphyxia which may be caused when a person’s position prevents them from breathing properly, such as in cases where certain restraint techniques like face down or prone restraint are practiced by the police (Angiolini, 2017, p. 8). Duxbury, Aiken, and Dale (2011) have also found in their own research that restraint can lead to death, this being particularly relevant in cases involving certain groups that are vulnerable to risks while in restraint. Duxbury, Aiken, and Dale (2011) emphasise that any authority that is given the power to exercise restraint meaures should be aware of the biophysiological mechanisms and mechanisms that are relevant when restraining an aggressive or violent individual.

In cases involving restraint, excessive force may be present and may be the cause of custodial death. With respect to this issue, the report mentions that there is a lack of “consistency of training in restraint techniques across the 43 police forces in England and Wales” (Angiolini, 2017, p. 8). The report suggests that mandatory and accredited national training for police officers in restraint techniques and supervision of vital signs during restraint, should be a given so that police officers are better trained to employ restraint techniques that may not put someone’s life to danger or they may be able to monitor vital signs so that there is a minimisation of risk of death of the prisoner (Angiolini, 2017). With respect to the latter, the review makes an important point where it says that “ability to de-escalate circumstances which may lead to a physical or violent encounter should be paramount in the skills set of the individual officer” (Angiolini, 2017, p. 8).

An important factor that is relevant to custodial deaths in the UK is that of policing those who are vulnerable to harm due to link with drugs and alcohol. Research indicates that between the period of 2004 to 2014, 82% of deaths in custody showed a link with alcohol and/or drugs (Angiolini, 2017). Post-mortem examination of the deceased revealed that 49% of the deceased in deaths related to custody showed a cause of death to be alcohol and/or drug related factors (Angiolini, 2017). Due to these figures that show a high incidence of drug or alcohol link, it is emphasised that drugs and alcohol remain can be considered to be significant factor for deaths in police custody (Angiolini, 2017). In the light of this information, it has been recommended that policies that are designed to protect the health and safety of detainees must be formulated to minimise death in custody. With relevance to this point, the recent independent review has proposed that there may be a reconsideration of drying-out centres as alternatives to police custody or Accident and Emergency (A&E) departments for those under the influence of drink and/ or drugs as detainees that are intoxicated or under the influence of drugs, may require specialist supervision (Angiolini, 2017).

Another factor of vulnerability which is linked to deaths in custody is the mental health of detainees as those who have mental health issues may be more susceptible to harm. Statistics maintained by the IPCC also indicate that a significant proportion of deaths in custody involve people who have mental health needs (Angiolini, 2017). For instance, in 2015-16 period, 7 out of 14 deaths in custody were linked to mental health issue (Angiolini, 2017, p. 14). This is a significant proportion at 50 percent of all deaths in custody. This makes the issue of mental health and custodial deaths link a significant issue. With regard to this issue, the recent independent review has also recommended that mental health training for all officers in front-line or custody roles should be ensured at national level (Angiolini, 2017). Detainees may have potential fears and assumptions regarding their detention and these fears may lead to conditions in which such detainees may take self-harm measures (Angiolini, 2017). As of now, Section 136 of the Mental Health Act 1983, designates police stations as place of safety for the purpose of detaining people with mental health issues as well. However, police officers are not provided any training in mental health, which is a problem in the context of treatment of detainees.

Custody visiting officer providing protection

The scheme of custody visiting allows volunteers to attend police stations for the purpose of checking on the treatment of detainees in the custody of the police and reporting on the conditions in which detainees are held. Custody officers seek to report on the rights and entitlements of the detainees and the manner in which the police stations are responding to these rights. This is a way for providing protections to both detainees and the police because the latter can be at times thought of as prima facie liable for any harm to the detainee due to public perception, whereas custody visiting may indicate that detainees and those in custody are treated as per the law by the police.

Human rights law and custodial deaths

In this section, specific human rights provisions that are engaged in the cases in death in custody are discussed, especially in the context of the European Convention of Human Rights (ECHR) and the Human Rights Act 1998. The issue of death in custody brings to the fore the issue of human rights; the right to be treated humanely while in custody being one of the areas in which a discourse that conflates human rights with death in custody can be undertaken. The detainees have human rights, especially the right to have their life protected irrespective of the conditions or reasons for their detention (Wangmo, et al., 2014). When there is a link between the circumstances of the death and the environment in the custody the question of whether the detainee’s right to be treated humanely was respected does arise and is a part of the legal framework of rules that are made to minimise risk to the prisoner (Wangmo, et al., 2014). If there are clear indications of ill- treatment or inadequate conditions of detention that led to the creation of conditions in which death of the inmate occurred, then there is a clear engagement between death in custody and human rights law (Wangmo, et al., 2014). Indeed, from the perspective of human rights and deaths in custody, it is emphasised that every death in custody should be considered suspicious because imprisoned persons are a vulnerable group and the authorities are under a duty to protect these individuals (Wangmo, et al., 2014). From this angle, death in custody is also seen as engaging the issue of state responsibility in international law (Wangmo, et al., 2014). In the case of death in custody, the international law human rights regime would demand the establishment of legal standards within which the investigations are prompt, independent, and effective (Wangmo, et al., 2014). This is mandated by the UN Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation on States Parties to the Covenant (U.N. Doc. CCPR/C/21/Rev.1/Add.13, 2004), which stipulates that States Parties have an obligation in international law to investigate allegations of violations “promptly, thoroughly and effectively through independent and impartial bodies.” The establishment of the IPCC to investigate deaths in custody, would go to satisfy this requirement in the international law.

The IPCC is established to conduct independent and unbiased inquiries into deaths in custody; however, these inquiries have not met with satisfaction in the academic community because till date no police officer has been convicted for their role in the death of a person in custody. This opens up the debate on whether the establishment of the IPCC really meets the criteria in the international law for how independent inquiries into deaths in custody should be conducted. A case in which the IPCC met with criticism was that of the killing of Mark Duggan. The IPCC gave a clean chit to the police officers involved in the shooting based on the assumption that Duggan pointed a gun at the police when the inquest jury concluded that Duggan had actually thrown away the gun before he was shot at by the police officers (Slater, 2011). The engagement between Duggan and the police leading to his death was also controversial because of his race, which again brings to the fore human rights because it would appear that Duggan’s race played a role in his killing, making it also a discriminatory act. The issue is made more complicated by the protests that followed Duggan’s death, with the BAME community seeing the death as racially motivated (Slater, 2011). Later research into the issue reported one participant as noting that “constant discrimination, racism and lack of social mobility” faced by the BAME people at the hands of the police was one of the reasons for the protests (Briggs, 2012). Clearly, the protestors linked Duggan death to racial discrimination, which brings the issue of death in custody back to a discussion on race and conflates it with human rights, particularly, the right to not be discriminated against on the grounds of race.

Institutional racism is an issue that has been considered in connection with police treatment of the suspects and prisoners and the general treatment met by BAME people within the criminal justice system (Lord Scarman, 1981). The Scarman Inquiry reported on the failures of policing, the gaps in policing and issues related to personnel and training in context of racism (Neal, 2003). Scarman report cited racial disadvantage and discrimination of BAME people and recommended the better training of police in context of how they policed communities (Casey, 2013). This can be related to the issue of treatment of prisoners in the police custody as well.

Coming back to the issue of human rights and deaths in custody, as mentioned earlier, every detainee has the right to be treated humanely. Moreover, detainees have the right to not be treated in a discriminatory manner on the basis of their race or ethnicity.

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