31st August 2011

INQUEST welcomes the implementation of the death in custody provisions in the Corporate Manslaughter and Corporate Homicide Act which finally come into force on 1 September 2011.

There are currently serious gaps in accountability following a death in custody.  Existing mechanisms for investigating deaths such as the Independent Police Complaints Commission, the Prisons and Probation Ombudsman and the inquest system are not concerned with determining liability.  Investigations and inquest findings are not routinely monitored or published publicly and there is no statutory requirement for public bodies to act on the findings of these investigations. The current gap in accountability is exemplified by the fact that of the 12 unlawful killing verdicts returned by juries at inquests into deaths in custody since 1990, to date, none have led to a successful criminal prosecution.

Since it was set up in the early 1980s INQUEST worked with families and campaigners on the issue of corporate accountability following a number of major disasters including the Herald of Free Enterprise, the Marchioness, Hillsborough and a number of rail disasters alongside providing advice and support to many individual families following workplace deaths. When the original Bill was published in 2007 INQUEST successfully argued that decision to exclude public bodies including prisons, the police, emergency services and child protection services from the remit of this legislation had no logical, legal or moral case where grossly negligent practices or management failures have caused fatalities.

Helen Shaw, Co-Director of INQUEST, said:

 

Whilst not all deaths in custody are a result of grossly negligent management failings that would lead to consideration of a corporate manslaughter prosecution many of INQUEST’s cases have revealed a catalogue of failings in the treatment and care of vulnerable people in custody and raised issues of negligence, management failings and failures in the duty of care.

 

The new provisions provide a new avenue to address these problems and will hopefully have a deterrent effect, preventing future deaths and could also have a key role in maintaining confidence in public bodies by addressing the accountability gap that currently exists following a death in custody.

She added:

We also welcome the government’s decision to extend these corporate manslaughter provisions to the UK Border Agency. Even though the provisions will not apply retrospectively, and so will not cover the October 2010 death of Jimmy Mubenga who died whilst being deported by the private contractors G4S,  this is a positive step towards greater accountability.

Notes to editors:

1. The Corporate Manslaughter and Corporate Homicide Act 2007 created an offence whereby an organisation could be found guilty of corporate manslaughter if the way in which its activities were managed or organised resulted in a death and amounted to a gross breach of a relevant duty of care to the deceased (s.1). The offence was created to deal with the problem of obtaining convictions of corporate bodies because of the operation of the identification principle, which required the prosecution to show that the offence was in essence committed by the “directing mind” of an organisation which, given the complexities of decision-making in companies, it was difficult to identify a single individual with specific responsibility for the failing.  Section 2(1)(d) of the Act means the offence can be applicable to some custody providers. Implementation of this provision was delayed to allow custody providers time to ensure they were compliant with the Act.
2. In a written ministerial statement on 18 March 2011, the Parliamentary Under-Secretary of State for Justice outlined the government’s intention to bring forward secondary legislation to implement the death in custody provisions and to add further categories of custody providers to the Act – including the UK Border Agency. The secondary legislation was debated by the House of Lords on 5 July 2011.  A full Hansard transcript of the debate can be found here.
3. A letter from Lord McNally to Lord Thomas following the debate on the Statutory Instruments, confirms that the Act will apply to private providers and particularly those supplying immigration escort services (see PDF  here).
4. Bereaved families and specialist organisations such as INQUEST contributed time and effort to the lengthy consultation processes that led up to the enactment of the provisions in the Corporate Manslaughter and Corporate Homicide Act 2007.

• In 2005-6 INQUEST made submissions as a draft Bill was subject to pre-legislative scrutiny and raised the exclusion of deaths in custody as an issue.
• When the Bill was debated by parliamentarians in 2007, as part of a coalition of non-governmental organisations (including Liberty, JUSTICE and the Prison Reform Trust, we proposed the inclusion of s.2(1)(d) in the Bill, published briefings and held parliamentary meetings including a session where MPs heard from Imtiaz Amin, uncle of Zahid Mubarek who was murdered by his cellmate in HM YOI Feltham in March 2000.
• Once the Act received Royal Assent we monitored progress towards implementation including raising the issue at the Ministerial Board on Deaths in Custody, tabling parliamentary questions to check on progress and briefing Peers on the issue in advance of the debate on the statutory instruments to bring the measure into force.

5. Jimmy Mubenga died in October 2010 on an aeroplane whilst being deported by officials from the private company G4S who were contracted to provide immigration removal services by the UK Border Agency. INQUEST has produced a Briefing on Jimmy Mubenga’s death which can be found here.