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August 31, 2011

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Deaths in custody now subject to corporate manslaughter law

The Police, Prison Service and the likes of mental-health secure units and other detention facilities can now be prosecuted for corporate manslaughter in the event that an individual dies while in their custody.
As reported by SHP in July, section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007 comes into force tomorrow (1 September) and applies to all entities responsible for detaining people in custody. Such entities, including the Ministry of Defence and the UK Border Agency, had three years to prepare for the implementation of the Act, owing to the complex procedures involved in caring for vulnerable, or volatile individuals.

 The inclusion of deaths in custody within the scope of the Act means state and privately-run organisations with responsibility for detaining individuals could be prosecuted in cases where people have died as a result of neglect on the part of the organisation.
Jonathan Grimes, an expert in criminal health and safety law at Kingsley Napley, supports the inclusion of such entities. He said: “Existing law (the common law offence of gross-negligence manslaughter) already allows a criminal prosecution of police officers, prison officers, or others responsible for detaining members of the public, following a death in custody, where negligence on the part of these individuals can be proven to have contributed to the death.
“The Corporate Manslaughter and Corporate Homicide Act is about holding an organisation to account where its negligence causes a death. As such the change is to be welcomed, not least since it may focus custody-providing organisations on ways they can ensure the safety of those they are responsible for detaining – and that may help to reduce certain preventable deaths.”
Examples of situations in which the offence might apply to custody-providers include:

  • a prisoner dying while in secure transit as the result of an accident caused by an inadequately maintained vehicle;
  • a prisoner dying of positional asphyxia as a result of having been restrained in an unapproved manner, because the detaining organisation had not trained its staff properly, or made them adequately aware of the risks; and
  • a fire occurring in a detention facility, where fatalities result owing to the failure of the organisation to maintain fire detection/fighting equipment, or to have a well-practised evacuation plan.

According to Jonathan Grimes, it is also possible that organisations could be prosecuted in the event that prisoners, or detained patients with mental-health problems, commit suicide, having previously signalled their intent to harm themselves, or where prisoners are murdered in circumstances where the organisation could and should have prevented it from happening.
However, he points out that the jurisdiction of the Act is limited to England, Scotland, Wales and Northern Ireland, meaning that a UK national cannot be convicted in relation to a death that occurs overseas (unlike gross-negligence manslaughter, which has universal jurisdiction).
With regard to MoD-run facilities, this is a particularly “odd” feature, said Mr Grimes, as “it may create a particular sense of injustice if a foreign national dies as the result of British Army neglect while in captivity overseas”.
So far, there has only been one successful prosecution under the Act – Cotswold Geotechnical Holdings Ltd was fined £385,000 in February this year over the death of an employee in a trench-collapse in 2008. The trial date for the second firm to be prosecuted under the Act – Lion Steel Equipment Ltd, of Hyde, Greater Manchester – has now been set for June 2012, following a preliminary hearing earlier this month.

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