AN INTRODUCTION TO INJURY CLAIMS IN PRISON
1.1 What this book covers
The concept of a prison in English law encompasses a whole host of different institutions, run by different organisations, both public and private. As we see below, there are places where adults or children are detained, but not all are called prisons. In this book, I have tried to cover the prison system run by HM Prison and Probation Service, which for brevity’s sake we call the Prison Service. Some mention is made of probation services, but the focus is on those who are or have been detained in prisons. I have also covered very briefly the detention system that exists for children and people whose immigration status is at issue. I have not covered injuries or death in police custody.
This book is concerned mainly with injury claims brought by both prisoners and the people who work in prisons. As we will see in Chapters Four and Five, claims by prisoners frequently rely on different causes of action, such as negligence, trespass to the person, misfeasance in public office and human rights.
The purpose of this book is to try and give practitioners an idea as to how the prison system works, and how to build a personal injury claim in circumstances that can be very challenging indeed. As a number of reports and court judgments on the prison system have shown, prisons can be highly secretive places, cut off from the outside world, where abuse and corruption can flourish unchecked. It is generally accepted by the courts that prisoners are highly vulnerable people, who require a high degree of protection.
1.2 Getting background information about prisons
and their practices
There are a number of reports and research papers published by various organisations, which whilst they are unlikely to provide corroborative evidence in a personal injury claim, can be extremely useful to read as a way of understanding how the system was working or should have worked at any particular time. They also make reference to the documents commonly used by the Prison Service to record incidents or assess risk.
The Howard League for Penal Reform’s website https://howardleague.org/ contains a huge amount of information on what is happening in prisons. The League and other charities also publish online research and reports. For instance, one recent publication by the Howard League, “Preventing prison suicide” contains references to the suicide prevention methods that the Prison Service uses including “ACCT” (Assessment, Care in Custody and Teamwork). We look at ACCT again in Chapter Four.
There are also the reports published by the Prisons and Probations Ombudsman (“PPO”) – https://www.ppo.gov.uk/ whose work we examine in more detail later in this book. The PPO carries out independent investigations into deaths and complaints in prison. His 2017 to 2018 Annual Report has a section entitled “Investigating fatal incidents” which discusses the way in which ACCT is operated in prisons, and it refers to the Guidance on ACCT procedures set out in Prison Service Instruction (PSI) 64/2011 “Management of prisoners at risk of harm to self, to others and from others (Safer Custody)”.
The PPO also publishes the results of his investigations into complaints that are brought by prisoner, including fatal incidents (after an inquest has taken place), as well as a series of “Learning lessons reports” on a variety of prison issues, such as segregation and sexual abuse in prison. From time to time, the PPO is invited to carry out investigations into matters that fall outside his normal remit although the most recent report on the website dates back to 2008.
The Office of the Chief Coroner section of the Courts and Tribunal Judiciary website, https://www.judiciary.uk/related-offices-and-bodies/office-chief-coroner/key-cases/ contains key cases where decisions of the Coroner have been challenged by way of judicial review. These include deaths in custody. This section of the website also contains reports made by Coroners pursuant to Regulation 28 of the Coroners (Investigations) Regulations 2013, which are in effect recommendations made to the authorities to prevent further deaths.
HM Inspectorate of Prisons (“HMIP”) is an independent inspectorate which reports on the conditions and treatment of prisoners – https://www.justiceinspectorates.gov.uk/hmiprisons/. It publishes reports and recommendations for improvement in its reports. During the inspection of prisons, HMIP can identify significant concerns and write to the Home Office providing notification of the significant concerns and the reasons for those concerns. These are published on the website as “Urgent Notifications.”
The Independent Advisory Panel on Deaths in Custody provides independent advice and expertise to the Ministerial Board on Deaths in Custody. It covers deaths that occur in prisons, in or following police custody, immigration detention, the deaths of residents of approved premises and the deaths of those detained under the Mental Health Act 1983.
The IAP’s website can be found at :- http://iapdeathsincustody.independent.gov.uk/.
1.3 Recommended reading
Prison law is a subject of itself, and the prison system is very complicated with its own procedures and practices. To help navigate the maze, there are three excellent books on the subject of prison law, which are :-
‘Prisoners – Law and Practice’ – Simon Creighton and Hamish Arnott – Legal Action Group 2009
‘Prison Law – Fourth Edition’ – Stephen Livingstone, Tim Owen QC and Alison Macdonald – Oxford 2008
Although the first two books are at least a decade old and some of the law and the prison procedures that they describe have changed, they are well worth purchasing. They are written by highly experienced and eminent practitioners and they provide an in-depth examination of the legal basis on which prisons function, the way in which they are run and the various types of legal claims that prisoners bring, including injury claims.
Chapters 18 and 19 of ‘Inquests – A Practitioners Guide’ are more up to date and incorporate a very helpful section on deaths in prison as well as deaths under restraint. It is mandatory reading for anyone contemplating representing the family of a deceased prisoner at an inquest.
Chapter Five of the ‘Immigration and Asylum Handbook’ published by the Law Society provides a short but very helpful guide to immigration detention centres.
1.4 Charities that support prisoners
There are a number of charities that work tirelessly to support prisoners and which campaign to reform prison law. They can provide very useful sources of information as well as up-to-date news on what is happening within the Prison Service. The following are four of these charities :-
The Howard League – https://howardleague.org/
The Howard League for Penal Reform is the oldest penal reform charity in the UK. It was established in 1866 and is named after John Howard, one of the first prison reformers. Over the years it has run a number of successful campaigns on behalf of both children and adults in the prison system. It publishes the Howard Journal of Crime and Justice. They also bring legal cases, sometimes in their own name or through interventions, to help shape the law.
The Prisoners’ Advice Service (“PAS”) –
PAS is an independent charity founded by a number of organisations including the Prison Reform Trust, and the Howard League to offer free legal advice and support to adult prisoners throughout England and Wales. They produce a quarterly Prisoners’ Legal Rights Bulletin (available by subscription), in order to share updates on key Prison Law cases with prisoners, human rights organisations and legal professionals. This Bulleting also provides information about new legislation and cases, new Prison Service Instructions and Orders, and commentary on cases that have gone before the Prisons and Probations Ombudsman.
PAS also produces a series of Self-Help Toolkits and Information Sheets on their website, which are designed to assist prisoners with various legal issues. These Toolkits provide very useful information on a variety of different issues, such as Category A prisoners and disciplinary offences committed in prison.
There is also a ‘Links’ page on their website with links to other charities.
The Prison Reform Trust – http://www.prisonreformtrust.org.uk/
This is an independent UK charity working to create a just, humane and effective penal system. They do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, government and officials towards reform.
The Prison Advice and Care Trust (“PACT”) –
PACT is a national charity that provides support to prisoners, people with convictions, and their families. They support people to make a fresh start, and minimise the harm that can be caused by imprisonment to people who have committed offences, to families and to communities.
INQUEST – https://www.inquest.org.uk/
INQUEST provides expertise on state related deaths and their investigation to bereaved people, lawyers, advice and support agencies, the media and parliamentarians. It publishes “Inquest Law” three times a year, which contains summaries of cases and examines various issues. It also publishes reports on deaths in prison. One example is “Stolen Lives and Missed Opportunities – The deaths of young adults and children in prison” (March 2015).
This is the national newspaper for prisoners and detainees. It can be found online at https://insidetime.org/insideinformation-home/ and it is a comprehensive guide covering all UK prisons and prison related issues. The service is designed and is maintained with input from former prisoners and their families. All prison information is gathered directly from each individual establishment and a range of Legal Factsheets provided by various legal specialists provide simple explanations to prison law and other legal issues. It also provides an extensive glossary to the many terms used in the Prison Service, at https://insidetime.org/glossary/.