Deaths in Custody, including following contact with the police

• What is a 'death in custody'?
• Death following contact with the Police
• Handling of death in custody cases
• Who investigates deaths in custody?
• Who advises on charge and prosecutes death in custody cases?
• Professional Training
• Self-defence and Reasonable Force
• CPS contact with families
• The Coroner
• The Inquest

What is a 'death in custody'?

A 'death in custody' is a generic term which refers to deaths of those in the custody of the State. For a prosecution to be considered, there also has to be suspected culpability in relation to the death. A non-fatal shooting or severe and extensive injury is not sufficient; there must be a death.

The deceased must have been 'in custody'. The following list illustrates some circumstances that may apply to this definition:

• whilst under arrest in a police station;
• whilst held as a prisoner in a prison or police station;
• whilst under arrest by a police officer at any other location;
• whilst being detained for the purposes of a search;
• whilst in other lawful detention e.g. immigration detention (but not where the victim is compulsorily detained under the Mental Health Act 1983 except where the person is still in police custody before being transferred to a medical facility);
• whilst a child or young person is in custody for their own protection;
• as a result of being shot by a police officer; or
• following any other 'contact with the police' where there may be a link between the contact and the death.

The employment of the person who caused the death is not restricted to police or prison officers, and could include, for example, prison nurses. If a person dies following medical treatment by a police doctor whilst in custody, that is still a death in custody.

A suicide can also be a death in custody, as can for example, a death following a fight between prisoners, if there is an indication that a prison or other officer or the prison has been grossly negligent in failing to prevent the death.

Death following contact with the Police

'Death following contact with the police' is a broad category, covering many possible scenarios. It is not limited to ‘contact’ in the sense of physical touching or assault but includes all cases where a person dies following some kind of interaction with the police. For example:

• a custody officer releases someone on bail from a police station whilst they are suffering from an undiagnosed illness from which they later die;
• a homeless person is found frozen to death after the police checked on their welfare;
• a person suffers a fatal heart attack running away from a police officer who is trying to arrest them;
• a death that happens whilst in transit from police detention to a medical facility, whether being transported by the police or an ambulance; and
• where the police attend a siege situation and the besieged person kills themselves or a hostage.

In cases where there is any doubt regarding police contact, prosecutors should refer them to the Head of the Special Crime Division (SCD) within the Special Crime and Counter Terrorism Division (SCCTD).

Handling of death in custody cases

Within the CPS, all deaths in custody cases are handled and prosecuted by the SCD which consists of experienced and specialist prosecutors who prosecute some of the most sensitive and demanding cases across England and Wales. Any referrals should be sent in the first instance, to the Head of SCD.

Area prosecutors should not give the police any sort of preliminary advice or guidance. If the police contact an Area prosecutor at night or at the weekend general advice on scene preservation can be given but prosecutors must ensure they do not provide any further advice.

Who investigates deaths in custody?

If a person has died whilst in the custody of the State it is important that all circumstances of the death are examined. There must be an independent and thorough investigation that is capable of leading to the identification and prosecution of any person, organisation or company that may have been criminally responsible for the death.

If the death took place in a police station or following contact with the police, the Independent Office for Police Conduct (IOPC) will usually investigate, or alternatively manage or supervise the investigation by the police. The IOPC is independent from the police and it’s their job to investigate any allegations of criminal conduct by police officers. Information about the IOPC can be found on its website: We are the Independent Office for Police Conduct.

If the death has taken place in a prison, immigration detention or in any other form of non-police custody, then the police will lead this investigation.

Who advises on charge and prosecutes death in custody cases?

Death in custody case can only be reviewed by a Senior Specialist Prosecutor who has been personally ‘ticketed’ by the Director of Public Prosecutions (DPP) to conduct such cases. The ticketing process involves mentoring meetings with police and bereaved families, and additional oversight and assessment of review notes and advice, before a formal recommendation is made for ticketing. A Senior Specialist Prosecutor can only attempt to secure ticketed accreditation twice.

The prosecutor will usually only decide whether charges should be brought when the IOPC has concluded any investigation. However, the prosecutor may request any ongoing advice and updates from the IOPC during the course of the investigation, including early sight of evidential material, to support timely charging decisions once the investigation is complete.

There is an extensive quality assurance process for approving charging decisions for these cases. Ultimately, every case where a charging decision is made by a prosecutor is considered personally by the DPP, although the responsibility for the decision always remains with the prosecutor who makes it.

The prosecutor must also certify in their charging decision that there has been an effective and thorough Article 2 investigation. This requires the investigation to:

• be initiated by the state itself;
• be independent from those targeted by it;
• be capable of leading to the identification and punishment of those responsible;
• be prompt and expeditious;
• be thorough;
• permit sufficient public scrutiny of the investigation or its results; and
• permit participation of the victim, or the victim’s family.

SCCTD has agreed a Memorandum of Understanding with the IOPC on working arrangements and joint guidance on the pre-arrest and pre-charge processes. The documents emphasise that investigations should be completed as soon as reasonably practicable and for there to be early involvement by the prosecutor in all appropriate cases.

Professional Training

When considering any case referred to the CPS, prosecutors will take into account whether the related conduct was in accordance with any relevant professional training or any standard operating procedures. This is a relevant and potentially very important factor in determining what is reasonable conduct in the course of their duties, but it should never be regarded as definitive. All case circumstances must be carefully considered when assessing whether the conduct was both necessary and reasonable. This will include the nature of the incident, professional experience, and the operational context at the time of the incident.

Self-defence and Reasonable Force

The police, no matter what situation they are faced with, are subject to the same laws of self-defence, and the use of reasonable force, as members of the public.

Section 76 of the Criminal Justice and Immigration Act 2008 provides clarification on the operation of the existing common law in relation to self-defence, and the defence provided by s 3(1) of the Criminal Law Act 1967 (use of force in the prevention of crime or making arrest).

Where fatal police shootings are concerned, the prosecutor will be asked to consider whether the actions of the officer concerned were reasonably necessary in the circumstances as the officer honestly believed them to be. However, the courts have indicated that officers dealing with these dynamic and fast-evolving situations should be judged with regard to the overall circumstances, without placing undue weight in hindsight upon minute dissections of time, (An Officer of the Metropolitan Police) v Holland (Chairman of the Azelle Rodney Inquiry) [2014] EWHC 454 (Admin)).

In any case where the related conduct takes place during a fast moving and dynamic situation, careful thought must be given to whether the prosecution has a realistic prospect of being able to disprove the defence of self-defence and/or defence of another.

CPS contact with families

Prosecutors will contact the bereaved to explain their role in the case and offer an initial meeting, where appropriate. This will usually take place at a CPS office.

The prosecutor will explain the respective roles of the investigator and the prosecutor, the offences that are under consideration (for example murder or gross negligence manslaughter) and what has to be proved for each offence. The prosecutor will also explain that they might not be able to discuss the details of the available evidence because this may affect any future trial. Whether or not they can discuss the evidence will depend on the circumstances of the case. The prosecutor will also give the bereaved copies of leaflets that explain how decisions are reached under the Code and the process for dealing with deaths in custody.

Because of their importance, complexity and reliance on expert evidence these investigations can be very lengthy. As a result, there may be quite a long time (months rather than weeks) between the meeting with a bereaved family and the decision whether or not to prosecute an individual or organisation.

Once the investigation is complete, the prosecutor will usually offer a second meeting for the bereaved to raise any issues that particularly concern them and which may not have been known about at the time of the first meeting. Often, a second meeting may not be necessary if all issues have already been discussed. However, the bereaved are always welcome to raise anything that they want with the prosecutor, whose contact details they will be given.

If matters are taking longer than expected, the prosecutor may also write to the bereaved family to keep them updated. They may also offer a further interim meeting, depending on the circumstances of the case.

When the decision as to whether there should be a prosecution has been made, the prosecutor will write to tell the family the decision. If the decision is to prosecute the letter will confirm who is to be charged for what offence. Only basic information is usually given at this stage, as providing further details about why the decision was made might affect the trial. If the decision is not to prosecute, the letter will provide more details, explaining how and why the prosecutor came to the decision.

The prosecutor will again offer a meeting to give further explanations, either of what will happen next in the prosecution or about why there is to be no prosecution. A meeting will also be offered if, after a decision to prosecute, the prosecutor decides to stop the prosecution, withdraw one or more charges or make a substantial alteration to the charges.

If a decision is taken not to prosecute or to stop a prosecution, then the family will be offered an opportunity to request a review of the decision under the Victims' Right to Review Scheme. The review will be conducted by a lawyer who was not involved in the original decision.

Bereaved families may bring their lawyer or a friend to any meeting, which is perfectly acceptable.

There is no obligation on the bereaved to attend any meeting if they do not want to.

Prosecutors may also find it useful to consider Bereaved Families - Guidance on CPS service to bereaved families in homicide cases and additional guidance on Providing a quality service to victims of bereaved families in terrorist incidents, disasters and multi-fatality cases. Separately, a guide on the role of the CPS in a death in custody case is available.

The Coroner

A coroner is a doctor or lawyer specifically appointed to conduct inquests following the reporting of a death. The coroner will have a death reported to them if it has been violent or unnatural, sudden deaths where the cause is unknown and those deaths occurring in 'custody' as defined in this guidance.

The Inquest

Where criminal proceedings are being considered in relation to a death in custody (under murder or manslaughter), the coroner will open an inquest and then adjourn it until the outcome of the proceedings is known.

If the prosecutor has decided not to charge the suspect, he/she should notify the coroner, providing an explanation on why this decision has been reached; the coroner will then arrange the inquest date.

If a decision is taken to charge the suspect with murder or manslaughter, the coroner will adjourn the inquest until the outcome of the criminal proceedings is finalised. However, if the suspect is charged with an offence other than that of murder or manslaughter, the coroner may hold the inquest before or in parallel to the criminal proceedings at his/her discretion.

The prosecutor does not have a formal role at an inquest. If the inquest returns a finding of unlawful killing, the investigator will be requested to look at the evidence presented at the inquest and a determination will be made as to whether there has been any new evidence heard at the Inquest which would be capable of affecting the prosecution charging decision. If there was new evidence heard at the inquest that had such capability, then the prosecutor will review the evidence and determine whether the charging decision will be remain as before, or whether it will be changed.