Legal Updates

Chief Coroner Guidance No. 42 – Remote Hearings

The Chief Coroner has published new guidance in respect of remote hearings (Guidance no. 42) and inquests in writing and rule 23 evidence (Guidance no. 29). There is now no entitlement for observers or participants to attend hearings remotely. Where individuals wish to attend remotely, an application must first be made to the Coroner.

Coroners may now hold inquests in writing in straight forward and non-contentious cases where holding a hearing is not in the public interest.

Capsticks Comment

The pandemic forced many Coroners to hold inquests and pre-inquest review hearings remotely. This guidance now makes it clear that remote attendance at hearings by observers, and perhaps more importantly participants, will not be allowed purely for the convenience of the participant if it will not improve the quality of the evidence or expedite the hearing.

There is a real risk that the requirement for participants to attend hearings in person will increase the burden on already extremely busy healthcare and custodial professionals.  However, where remote participant attendance would enable hearings to be listed more promptly, Coroners may be persuaded that this would be in the interests of justice and expediency.

In light of the significant backlog of cases within the Coronial system, the ability for Coroners to deal with straightforward cases in writing is a positive development. An inquest in writing can avoid the stress of a hearing for the family and reduce stress and inconvenience caused to witnesses who may have previously been required to give oral evidence in cases where their statements were detailed and uncontentious.

This topic was explored in our article here

Chief Coroner Guidance No. 44 – Disclosure

The Chief Coroners Guidance No. 44 provides practical advice for coroners on disclosure and covers the following areas:

• obtaining disclosure; and
• providing disclosure to Interested Persons at a timely stage in the investigation process.

The Guidance sets out suggested wording for a formal warning which could be included when documents are disclosed electronically, and also covers the following areas:

• Extent and timing of disclosure;
• Requests by Interested Persons;
• Post-mortem Examination Reports;
• Medical Records; and
• Redactions.

The latest guidance can be found here

Chief Coroner Guidance No 14: Merger of Coroner Areas has been updated

The Chief Coroner’s Guidance on the Merger of Coroner Areas (Guidance No 14) has been updated. The latest guidance can be found here

Medical cases and Article 2 ECHR

Devall & Corcoran v Ministry of Justice [2022] EWHC 1608 (QB).  23 June 2022

Whilst this case was in relation to a strike out in a civil claim, analysis was provided of the applicability of Article 2. In short, the background is that the deceased was living in an Approved Premises having been released from prison on licence a month earlier. On the day the deceased died staff had tried to rouse him by shaking him amongst other things for two hours. Despite family inquiries by phone, he was left for another four hours. When the ambulance were eventually called, the deceased was beyond saving.

A civil claim was brought alleging a breach of the systemic and operational duties under Article 2. The Defendant argued that Article 2 obligations could not arguably arise in a case concerning the medical care of a person living in the community.

In short, the appeal Court did not agree that this claim had no reasonable prospects of success. The Court said that it was ‘properly arguable’ that the requirement for those on licence to reside in Approved Premises involved a sufficient form of State control outside the usual examples in ECHR guidance and previous case law.

Capsticks Comments

Importantly, this case did not say that Article 2 definitively applied in the circumstances, but that a strike out application should not be successful as there was an argument that Article 2 could apply.

This case does demonstrate that there is an expanding nature to the applicability of Article 2 in medical cases, and each case should be treated individually. The ‘usual’ parameters of what constitutes state control cannot be treated as regimented parameters.

Overview of Article 2 General Duty

R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire [1] [2022] EWHC 1377 (Admin) 7 June 2022.

Consideration of the, still evolving, Article 2 ECHR (Art 2) procedural duty in respect of inquests was considered in the recent case of Patton.

This matter relates to the death of 16 year old Kianna Patton, who was found hanging in an abandoned building.  Kianna was under the care of the Specialist Child and Adolescent Mental Health Service (CMHTS) and was also classed as a ‘Looked after Child’ by the Council. Following Kianna’s death, her mother, Mrs Patton, raised concerns around serious failing in the way public bodies responded to concerns she had raised about Kianna’s wellbeing.

At the Pre-Inquest Review Hearing, Ms Patton argued that there was a general Art 2 obligation to put systems in place to safeguard Kianna.  It was argued that the provisions under, s.76 and s.78 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’) gave rise to a duty to accommodate Kianna and offer her a care and support plan as a ’looked after child’. The failure by Social Services, CMHTS and the Police to put systems in place was therefore a breach of this Art 2 duty. 

The Coroner ruled that Art 2 was not engaged, and Mrs Patton sought Judicial Review. 

Decision

The matter was heard by Mrs Justice Hill on 2 June 2022.

Hill J concluded that the Coroner had not addressed the submissions made by Mrs Patton on the correct basis, nor had the Coroner adequately set out the basis for their decision.  Hill J accepted that the Coroner’s decision-making process had been complicated by a range of factors:

• Firstly, there was clear confusion among parties as to whether Mrs Patton was arguing that her case was one where the enhanced investigative duty automatically applies.  This had been caused by the language used by both sides during proceedings, however, it was clarified at the judicial review that this was not the case;
• Secondly, the argument as to whether the general duty applied in principle to the facts of Kianna's case had not been fully addressed in previous proceedings, and in failing to do this it prohibited a decision being clearly made on whether a duty, if present, had been breached;
• Thirdly, matters had been complicated by Ms Patton’s reliance on the Council’s alleged failings in respect of section 76 as evidence of, not just the duty, but also of the breach of the duty.

In the judgment, Hill J stated that by clarifying these matters earlier, the Coroner would have had a clearer pathway in order to make their decision.

Hill J’s judgment helpfully sets out the right way to approach this Art 2 issue:

1. The Coroner should have firstly proceeded on the basis that the general duty was, in principle, applicable to the relationship between Kianna and the Council, regardless of the s.76 duties.
2. Consideration should also have been given to whether the general duty existed as between Kianna and the Police and Health Board.
3. Once those matters had been resolved the focus should have been on whether there were any arguable breaches of the general duty, applying the low arguability threshold, and bearing in mind the key distinction between systemic and individual failings.
4. Finally, it was necessary to address whether any proven arguable breaches meant that there had been a loss of a substantial chance of a different outcome

In addressing these points first, the Coroner would have been able to address the legal issues of (i) the existence of the general duty, (ii) the arguable breach of it, and (iii) any causation.

Hill J concluded that the most sensible and fair course was to remit the decision back to the Coroner to make their decision afresh.  Hill J noted that judicial review process had illustrated that the entire approach to the general duty in this case needs to be reconsidered.

COVID-19 Public Inquiry

Prisons and other places of detention are part of the COVID-19 Public Inquiry’s Terms of Reference.

In relation to the present position of the Inquiry, it has now opened its second investigation, Module 2, which is primarily focussed on the decisions made by the UK and devolved governments.

Module 2 will look at the decisions taken by the Prime Minister and the Cabinet, as advised by the Civil Service and other advisers – including scientific advisers. Module 2A will examine the decisions of the Scottish Government, Module 2B will look at the Welsh Government and Module 2C will consider the decisions of the government of Northern Ireland.

The proposed timetable for Module 2 (and Modules 2A, 2B and 2C) is as follows:

• The window for applying for core participant status opened on 31 August and will close on 23 September.
• Preliminary hearings will be held in late autumn 2022.
• Witnesses will give evidence in summer 2023.

A more detailed update, and guidance as to how Capsticks can help you in relation to the COVID-19 Inquiry can be found here

Statistics

Most prisoners who need drug treatment on release don't get it - but one council bucks the trend

Almost two-thirds of England's prisoners who leave jail with a need for drug treatment aren't receiving it, Sky News has revealed.

Of the 25,000 prison leavers who need support for substance misuse each year, 62% do not get the help they need.

A full link to the article can be found here

Offender management statistics quarterly: January to March 2022

Detailed quarterly statistics on offenders in custody (including offence groups, sentence lengths and nationalities), and quarterly statistics on prison receptions, prison releases, adjudications, licence recalls and offenders under probation supervision.

• 80,659 prisoners in England and Wales as at 30 June 2022 - This represents a rise of 3% compared to the same period in the previous year.
• 15,354 first receptions into prison between January and March 2022 - This is a rise of 9% compared to the same period in 2021.
• 11,324 releases from sentences between January and March 2022 - This is 1% lower than the same period in 2021. As the prison population shifts towards those serving longer sentences, we expect fewer releases in each period.
• 37,102 adjudication outcomes between January and March 2022 - This has remained unchanged compared to the same period in 2021. Additional days were awarded as punishment on 582 occasions.
• 5,544 licence recalls between January and March 2022 - This is a 5% increase on the same quarter in 2021.
• 240,922 offenders on probation at the end of March 2022 - This number increased by 7% compared to the number of offenders supervised as at 31 March 2021.

A full link to these statistics can be found here

Capsticks Comment

The above statistics still reflect a period when COVID restrictions were applicable within prisons. The 9% increase in first receptions is particularly noteworthy, however this still remains lower that pre-pandemic levels.

The increase in prison population also reflects the easing of COVID restrictions outside of the prison estate, with the number of prisoners surpassing 80,000 for the first time since March 2020. Whether the prison population increases to the levels seen in the years before the pandemic (circa 85,000) remains to be seen.

Safety in Custody quarterly: update to March 2022

Quarterly update on deaths, self-harm and assaults in prison custody in England and Wales.

• Number of deaths decreased from the previous 12-month period - In the 12 months to June 2022, there were 288 deaths in prison custody, a decrease of 27% from 395 deaths the previous 12 months. Of these, 66 deaths were self-inflicted, a 20% decrease from the 82 self-inflicted deaths in the previous 12 months. In the most recent quarter there were 70 deaths, almost unchanged from 69 deaths in the previous quarter.
• The number and rate of self-harm incidents increased in both male and female establishments from the previous 12-month period - There were 53,754 self-harm incidents in the 12 months to March 2022, up 4% from the previous 12 months, comprising increases of 3% in male establishments and 7% in female establishments.

Over the same period, the rates of self-harm incidents per 1,000 prisoners increased by similar amounts taking account of the size of the prison population, which has changed relatively little over the period. They increased by 3% in male establishments and by 7% in female establishments.

In the most recent quarter, there were 12,253 self-harm incidents, down 14% on the previous quarter, comprising of an 18% decrease in male establishments and a 3% increase in female establishments.

• The number of individuals who self-harmed decreased - There were 11,079 individuals who self-harmed in the 12 months to March 2022, down 3% from the previous 12 months. The number of self-harm incidents per individual increased from 4.5 in the 12 months to March 2021 to 4.9 in the 12 months to March 2022.
• Assaults increased from the previous 12-month period - There were 20,077 assault incidents in the 12 months to March 2022, up 13% from the 12 months to March 2021. In the most recent quarter, assaults were down 11% to 4,688 incidents.
• Assaults on staff increased from the previous 12-month period - There were 7,599 assaults on staff in the 12 months to March 2022, up 8% from the 12 months to March 2021. In the latest quarter the number of assaults on staff decreased by 12% to 1,720 incidents.
• The number of serious assaults increased & 10% of all assaults were serious - In the 12 months to March 2022, there were 2,086 serious assault incidents, an increase of 11% from the previous 12 months. Serious prisoner-on-prisoner assaults increased by 14% to 1,420, and serious assaults on staff increased 8% to 699 in the 12 months to March 2022.

Find the full list of statistics here 

Capsticks Comment

The decrease in deaths by 27% to 288 deaths in the year to June 2022 is driven by a decrease in the number of deaths related to Covid-19. There were 70 deaths in the latest quarter, much lower than the peak of 153 in the January to March 2021 quarter. Only 1 was suspected to be due to Covid-19, down from 8 in the previous quarter, and much lower than 60 in the January to March 2021 quarter.

Whilst there were 66 self-inflicted deaths in the latest year, this represented a decrease from 82 in the previous year and the lowest since the year to June 2013.

Whilst there were sadly increases in the number of self-harm and assault incidents, these remain lower than the pre-pandemic figures for the 12 months to March 2020. This is also true of the rates of assaults and serious assaults which have increased in the latest 12 months to March 2022, by 13% and 12% respectively, but they remain considerably lower than they were at the start of the pandemic. The rate of assaults in the latest 12 months was 28% lower than in the 12 months to March 2020, and the rate of serious assaults was 37% lower. This is obviously reflective of the amount of time prisoners have spent out of their cells during Covid-19 restrictions.

HMIP Annual Report 2021-22

The HMIP Annual Report, from Chief Inspector Charlie Taylor, covers 63 inspection, scrutiny visit and thematic reports published between April 2021 and the end of March 2022. This includes scrutiny visits (SVs) – introduced in August 2020 to examine conditions for prisoners during the pandemic and consider how well establishments were recovering – until May 2021, when Inspectors were able to return to full inspections. Mr Taylor highlights that long lock-up times and a lack of purposeful activity in prisons have barely changed and in some cases deteriorated since the Inspectorate’s first Annual Report in 1982. Other key findings are:

• issues with staff recruitment and retention
• concerns for the well-being of women
• children let down by poor provision
• haphazard arrangements for immigration detainees
• a mixed picture in court custody.

In particular, Mr Taylor highlighted that a lack of purposeful activity in prisons is “a seemingly intractable problem” raised by each of his six predecessors since the first HMI Prisons annual report published 40 years ago. Recent inspections found that some prisoners were locked up for 23 hours a day or more.

Mental Health was also a key issue, with Mr Taylor noting that:

“Throughout the year prisoners told us that their mental health was suffering, with 51% of men and 76% of women saying they had mental health difficulties. We do not yet know what the longer-term effect of lockdowns will be on prisoners, but there is no doubt that there will be a price to pay for the loss of family visits, the limited chance to socialise with other prisoners, the lack of education, training or work, the curtailing of rehabilitative programmes, the cancellation of group therapy and the dearth of opportunities for release on temporary licence.

“Some of the most disheartening inspections were at prisons with large proportions of young men, where the often extensive grounds and workshops remained mostly empty and just a handful of prisoners were receiving any face-to-face teaching. The failure to fill the gaps in the skills and education of these prisoners and the low expectations of their abilities and potential meant they were learning to survive in prison rather being taught how to succeed when they were released.

The full report can be found here

Capsticks Comment

This report clearly highlights the numerous difficulties facing prisons and other secure establishments at this present time. It is important to highlight that this report is largely reflective of a time when the establishments were subject to COVID-19 restrictions, and therefore statistics about time in cells are slightly distorted. It should also be recognised that the work undertaken by many secure environments during this unprecedented period has been widely praised. A huge amount of work went into ensuring the safety of prisoners and staff, and the measures put in place were extremely effective in minimising the spread of the disease. That said, there is clearly work that needs to be done in tackling the impact of COVID-19 and the inactivity many prisoners and young people in Secure Training Centres were subjected to. Key to solving any of these problems however are the issues in relation to staffing and the retention of experienced officers.

New figures spark fears of a perfect storm in prisons

The prison service is facing an exodus of staff ahead of a projected increase in the prison population of nearly 25% in the next four years, according to a new report published by the Prison Reform Trust.

The report, Prison: the facts, reveals that more than one in seven (15%) prison officers left the service last year. Of those, half had been in the role for less than three years; and more than a quarter left within the first year.

Find the entire report here 

Capsticks Comment

This report is striking and reflects the concerns raised by HMIP’s Annual Report. Of particular note, is that many newer member of staff have only experienced the prison regime during COVID-19 restrictions and therefore more experienced staff will need to ensure that these junior staff are thoroughly supported. As discussed above, there will also potentially be heightened concerns around prisoner mental health, bullying and access to drugs now that the prison regime has relaxed. Staff will need to be fully supported in addressing these issues.

Safety in the Children and Young People Secure Estate: Update to March 2022

Safety in the Children and Young People Secure Estate statistics cover assault, self-harm and deaths in the Children and Young People Secure Estate in England and Wales.

• 473 assault incidents Jan to Mar 2022, of which 33 were serious. The annualised rate of assault incidents per 100 children and young people per year was 394 in the 3 months January to March 2022, a decrease of 9% compared to the same period last year.
• 317 different children and young people involved as assailants or fighters. The number of individual children and young people involved in incidents as assailants or fighters decreased 27% in the 3 months January to March 2022 compared to the same period last year, from 432 to 317.
• 254 assault incidents on staff Jan to Mar 2022, of which 26 were serious. The annualised rate of assault incidents on staff per 100 children and young people per year was 212 in the 3 months January to March 2022, a decrease of 9% compared to the same period last year.
• 378 self-harm incidents Jan to Mar 2022. The annualised rate of self-harm incidents per 100 children and young people per year was 315 in the 3 months January to March 2022, an increase of 53% compared to the same period last year.
• 81 different children and young people self-harmed Jan to Mar 2022. The number of individual children and young people self-harming decreased 16% in the 3 months January to March 2022 compared to the same period last year, from 97 to 81.
• No deaths reported in the year to 31 Mar 2022. The last death in the Children and Young People Secure Estate was in June 2019.

Full the full list of statistics, click here 

Regulation 28 Reports / Lessons Learned

Coroners are under a duty to make a Regulation 28 Report, also known as a Prevention of Future Deaths Report, if they have concerns relating to circumstances creating a risk to life and it is felt that action needs to be taken to prevent these circumstances from arising again or to reduce the risk of death created by them. They are normally made after the inquest when the Coroner has considered all of the evidence, however they can be made before the conclusion where the Coroner concludes that there is an urgent need for action. The Reports are published on the Government website and below we have summarised the recent trends in the Health and Justice Sector.

Capsticks Comment

There have been three key themes in recent Regulation 28 Reports, and within those, certain issues have arisen which we have highlighted below.

Assessing and managing risk of self-harm and suicide

• It is a cross discipline responsibility, with disciplines needing to understand the role each has in assessing risk and how to ensure that is communicated effectively to other disciplines. This links heavily with the theme of information sharing between disciplines, which has also been a focus.
• Lack of consideration of risk factors – risk factors that are listed in ACCT documentation must be taken account of.
• There must not be overreliance on the presentation of the individual or assurances provided by them.

Control and Restraint

• Failure to be aware of signs of distress.
• Lack of communication between staff, and also staff to the individual being restrained.

Emergency Response

• Response bags – staff must know where the response bags are and be able to access them quickly. The bags must also contain the correct equipment.
• Misdiagnosis of hypostasis and rigor mortis – ensuring an individual is not subject to CPR when they have passed away will ensure their dignity
• Adequacy of CPR.
• Ensuring communication is clear – particularly when using terminology across different disciplines, notably external ambulance staff.

Good News Stories

Drive to get offenders drug-free and cut crime

New prison wings designed to get offenders clean will receive funding due to the government’s 10-year strategy to tackle drug-fuelled crime. This includes:

• £120 million to crack down on addiction and tackle drug-fuelled crime
• abstinence-led drug wings to be rolled out in prisons
• community drug testing boosted and extra support for prison leavers to prevent relapse

Full story here 

Prison-build revolution continues with construction of new Yorkshire jail

Building work on Britain’s newest ‘smart’ prison will start this autumn – delivering over 1,400 modern places to get more offenders into jobs and away from crime.

• Shovels to break ground on new prison this autumn
• Construction to boost local economy with hundreds of jobs
• Work signals latest major step toward 20,000 new prison places

The date has been set in stone as a result of a new £400m contract signed today with construction firm Kier, who will build the cutting-edge jail in East Yorkshire in time for it to open in 2025.

For the full article click here 

NHS trials talking therapy for suicidal prisoners

The NHS is to carry out a trial of a new “talking therapy” for men in prison who struggle with suicidal thoughts.

Four men’s prisons in the North of England will take part in the experiment. Men will receive up to 20 one-to-one sessions of Cognitive Behavioural Suicide Prevention (CBSP), which aims to help them understand the reasons for suicide and develop resilience. The sessions will run once or twice a week, and each will last 30 to 60 minutes.

While some men in the trial will receive CBSP, others will receive regular treatment alone, allowing the researchers to compare the results and determine whether CBSP is of benefit. If it is, its use could be extended more widely.

The trial – known as the Prevention of Suicide in Prisons: Enhancing Access to Therapy (PROSPECT) programme – is being funded by the research arm of the NHS, the National Institute of Health and Care Research.

Read more about the trial here

New evaluation shows benefits of scheme to keep women prisoners in touch with children

A pilot scheme being run by Pact to provide more support to mothers in prison is already yielding significant benefits, according to an interim evaluation report published this week by the University of Cardiff.

The pilot, called ‘Together a Chance’ has placed social workers in two women’s prisons - HMPs Send and Eastwood Park – whose role is to improve outcomes for mothers in custody and their children. The scheme aims to empower women to maintain links and engage with their children, whilst ensuring that child welfare remains paramount. 

Unlike local authority social workers, Pact social workers are specialist prison-based staff, and their work begins with the women as their primary caseload. However, their work complements that of their local authority counterparts in safeguarding the best interests of the child, while also providing vital support for mothers, many of whom have been victims of violence and domestic abuse.

Full story here

Construction is under way at the country’s first secure school

Construction begins at revolutionary first secure school - GOV.UK (www.gov.uk)

Since 2012, the number of children in custody has fallen from 2,000 to around 500. These young offenders are 50 percent more likely to reoffend than adult offenders. Prior to entering custody, 60 percent of young offenders were not engaged in education due to truancy, suspension, or expulsion. This means that they have lost out on months’ or years’ worth of learning which could have steered them towards opportunities that would result in a life free of crime.

The school is being built on the site of the now closed Medway Secure Training Centre in Kent and is due for completion in Autumn 2023. At this point it will be handed over and run by specialist education provider and operator, Oasis Restore. The first pupils are expected to arrive in 2024.

The approach taken to the education structure is based on international, peer-reviewed research, which shows that smaller settings, high-quality education and health care provisions are key to rehabilitating young offenders. A specialist workforce of teachers and youth workers will deliver a broad curriculum and offer one-to-one learning support. They will set be challenging targets in core academic subjects such as English and Mathematics, as well as a weekly programme of rigorous physical education and the opportunity for pupils to work towards sports and leisure qualifications. Ofsted inspectors will hold the establishment to the same standards as all other schools nationwide,

The construction of the new school builds on the Government’s commitments under the Prison Strategy White Paper to drive up standards of adult education in custody, while also tackling drug and alcohol addiction and ensuring offenders are ready for work on release.

Other best practice and good news stories

Clwyd South MS praises rehabilitation programmes at HMP Berwyn - Wrexham.com

Prisoners turn over new leaf through innovative farming scheme - GOV.UK (www.gov.uk)

How to rehabilitate a prison: female staff and an emphasis on wellbeing | News | The Times  

Millions invested to support female offenders - GOV.UK (www.gov.uk)

New houseblock to boost prisoner employment prospects - GOV.UK (www.gov.uk)

How Capsticks can help 

Capsticks aims to be the firm of choice for organisations working within the Health and Justice Sector, offering a full range of services including representation at Inquests and Public Inquiries, assistance with PPO responses and Action Plans, Judicial Reviews, Civil Claims arising from Inquests, Human Rights Act Claims, Serious Incident investigations, Investigations undertaken by the police or regulatory bodies and Information law. 

If you have any queries around what's discussed in this article, and the impact on your sector or organisation, please speak to Naomi McMaster or Ian Cooper to find out more about how Capsticks can help