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Deaths in Custody, including following contact with the police - A guide to the role of the Crown Prosecution Service

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Introduction

When a person dies in state custody, the police, or another investigative agency, will gather evidence to understand what happened. If the investigative team find evidence which suggests that a crime may have been committed then they will share this evidence with us at the Crown Prosecution Service (CPS).

At the CPS, we are responsible for prosecuting criminal cases in England and Wales. In death in custody cases, it is our role to decide whether or not a suspect can be charged with a criminal offence.  If someone is charged, we will present the case against them in court.

All death in custody cases are handled by our Special Crime Division who are experts in these types of cases.

This guide explains how we make those decisions and what happens next if someone is charged.  

We know that this is likely to be a very stressful time for the family of someone who has died in custody. This guide will also explain what support is available and what you can expect from the CPS throughout the process.

Deaths in custody and the European Convention on Human Rights

The UK is a signatory of the European Convention on Human Rights, and these rights are enshrined in UK law by the Human Rights Act 1998.

Article 2 of the convention says that everyone has a right to life and that right is protected by law. Article 2 places a positive duty on state authorities to take active steps to safeguard a person's Convention rights.

What is a death in custody?

A death in custody is when a person dies while in the custody of the state. This can include a wide range of situations.

  • For example, it will be a death in custody if a person dies while they are:
    Under arrest by a police officer or in a police station
  • Being held as a prisoner in a prison or a police station
  • Being detained for the purposes of a search
  • Being held in state detention e.g. immigration detention

A death may also be considered a death in custody if it follows any other contact with the police where there is a link between the police contact and the person’s death.

A suicide can also be considered a death in custody if it is thought that a person working in the custodial setting has negligently failed to prevent the death.

It may also be considered a death in custody if a person dies as a result of a police shooting.

It is important to remember that not every death in state custody will be the result of a crime or be regarded as suspicious. Although there will always be an investigation to establish the cause of death, this does not mean that criminal charges will always be brought or considered, or that all deaths have been caused by a criminal act. This will depend entirely on the facts of the case.

The investigation

When a person dies in state custody an investigation team will gather evidence to understand what happened.

  • If the person died while they were in prison, immigration detention or in any other form of non-police custody, then the police will lead this investigation.
  • If the person died while in police custody, then the Independent Office for Police Conduct (IOPC) will lead this investigation. The IOPC is independent from the police and it’s their job to investigate any allegations of criminal conduct by police officers.

The investigatory body that is responsible for the criminal investigation is said to have ‘primacy’. This means they have priority in identifying and considering the evidence for the purpose of a criminal investigation. Agencies such as the Prison and Probation Ombudsman (PPO) may also carry out parallel investigations to understand what happened leading up to the death and identify any learning for the organisations involved.

The type of evidence the criminal investigation team will look for will depend on the circumstances of each case. It could include things like:

  • Witness statements
  • Expert reports, for example a medical report from a doctor
  • CCTV evidence

It can take some time to gather all of this evidence and the investigation team will keep family members updated with their progress. They will usually appoint a dedicated officer to do this and you can let them know if you have questions at any point.

In death in custody cases we offer the investigation team ‘early advice’. This means that, if they ask for CPS advice, we will work with them as early as possible to advise them on what kind of evidence to look for and whether the evidence they have gathered so far suggests that a crime may have been committed.

If the investigation team find evidence which suggests that a crime may have been committed, then they will share this evidence with us at the CPS. We will review the evidence and decide whether or not a suspect can be prosecuted for an offence.

If the investigation team do not find evidence that a crime has taken place, then they will not send the case to us.

The role of the coroner

When a person dies in prison or police custody, the matter will be referred to the coroner. A coroner is a special kind of judge who has the power to conduct an investigation into a death.

A coroner will conduct a public hearing, known as an inquest, to establish how the person has died and where the death occurred. They will reach a conclusion about what has happened or record an ‘open verdict’, which means there is not enough evidence to decide what has happened.

After an inquest has been opened, it may be postponed until after any other investigations (including criminal investigations) are complete and the CPS has made a decision about whether there should be a prosecution.

The inquest does not decide whether anyone is guilty of a criminal offence, and the outcome of the inquest is not binding on the CPS. Even where there has been a verdict of unlawful killing, it does not necessarily mean that there will be enough evidence for the CPS to prosecute anyone. We can only make our decisions by following the test set out in the Code for Crown Prosecutors that is described below.

What happens when a case comes to the Crown Prosecution Service

We can only make a decision on a case once the investigation is complete and the investigation team has sent the evidence to us.

When we receive a death in custody case, our prosecutor will offer to meet with the family of the person who has died. We will explain the role of the CPS, the potential charges that we are considering and what we would need to prove for a suspect to be convicted of each offence. The prosecutor may not be able to discuss the detail of the evidence if this would affect a future trial but they will explain this, if this is the case.

How we make a decision on what to do in each case

Once we have received the evidence, our prosecutor will decide whether or not to charge the suspect by applying the two-stage test set out in our Code for Crown Prosecutors: The Code for Crown Prosecutors | The Crown Prosecution Service.

The first stage is the ‘evidential stage’. At this stage, our prosecutor reviews all the evidence provided and asks themselves the question: ‘Is there enough evidence against the suspect to provide a realistic prospect of conviction?’ That means, having heard the evidence, is a court more likely than not to find the defendant guilty?

To answer this question, they must consider whether the evidence they can use in court is reliable and credible and whether there is any other material that might undermine that evidence.

This test is different to the test the court applies at trial. When a case gets to trial the jury must be sure that a defendant is guilty in order to convict them.

If the case does not pass this first stage we cannot move onto the next stage, no matter how serious or sensitive the case may be.

The second stage is to consider whether a prosecution is in the ‘public interest’. At this stage, the CPS prosecutor again reviews all the evidence and asks themselves the question: ‘Is it in the public interest to prosecute?’

To answer this question, they must consider things like the seriousness of the offence, the harm caused to the victim, the impact on communities and the age and maturity of the suspect at the time of the offence.

If public interest factors against a prosecution outweigh those in favour of a prosecution, the prosecution will not go ahead.

Due to the very serious nature of these cases, the evidence will be reviewed by a senior specialist prosecutor who has been approved to review these cases, and every charging decision will be personally considered by the Director of Public Prosecutions (DPP).

The DPP is appointed by the Attorney General and is responsible for all criminal prosecutions instituted by the CPS. They may intervene in any criminal proceedings when it appears to be appropriate.

How long does it take for us to make our decision?

Every case is different and there is no single answer to this question. Some cases may be more straightforward while others will have a lot of evidence that we need to review or legal issues we need to resolve.

We know how difficult it can be while you are waiting for this decision so we will always do our best to review the evidence quickly and efficiently so that you are not waiting longer than is needed.

Our prosecutor will keep you up to date with how the case is progressing and will offer further meetings to discuss the case with you at relevant stages.

If we decide to charge a suspect

If our prosecutor decides that our two-stage test has been met, we will tell the police what offence(s) they can charge the suspect with.

The police will then charge the suspect. At this point the suspect becomes known as the defendant. The police will let you know that the defendant has been charged, and what offences they have been charged with.

If we decide not to charge the suspect

If our prosecutor decides the case does not pass our two-stage test, we cannot charge the suspect.

This is also called a decision to advise ‘no further action’ (NFA).

If we decide not to prosecute the case, our prosecutor will write to the family of the person who has died to explain the reasons why we have made this decision.

If you are unhappy with the decision, you may have the right to ask us to look at our decision again. This is called the ‘Victims’ Right to Review’ (VRR) Scheme. There is no formal process that you need to follow to request a review of your case – all you need to do is let us know that you would like us to look at our decision again. In the case of deaths in custody, the close family of the person who has died have the right to request this review if the decision was a ‘qualifying decision’.  

You can include information about why you would like us to review the case or why you think the decision is wrong, but you don’t need to do this – it is enough just to tell us that you would like us to review the decision.

If you would like to request a review, you should do this as soon as possible after we have let you know about our decision not to charge your case and ideally no later than 10 working days of the date of the decision letter.

If you request a review, a new prosecutor will review all the evidence and apply our two-stage test again to come to their own decision in the case. They may decide that the legal test is met and the suspect can be charged or they may agree with the original decision that there should be no further action. Once they’ve completed this review, they will write to you to explain their decision. They will also offer to speak to you over the phone or in person to discuss the case if you would find that helpful.  

Further information on the VRR scheme and qualifying decisions is available here: Victims' Right to Review Scheme | The Crown Prosecution Service.

What offences could a defendant be charged with?

Each case involving a death in custody is different and the appropriate charges will depend upon the conduct in question and on the evidence gathered during the investigation.

Some offences that could be considered include:

The role of the Health and Safety Executive

If the CPS decides not to charge a suspect, the Health and Safety Executive (HSE) can investigate any failures to comply with health and safety laws where the death has occurred at work or in connection with work activities. The HSE can prosecute organisations (e.g. companies), individuals, or both.

  • Gross Negligence Manslaughter
    This offence is committed where the death is caused by a grossly negligent act or omission on the part of the defendant.
  • Misconduct in Public Office 
    The offence is committed when a ‘public officer’ wilfully neglects to perform their duty or wilfully misconducts themselves to such a degree as to amount to an abuse of the public's trust without reasonable excuse or justification.
  • Corporate Manslaughter 
    This offence is committed if the way in which an organisation’s activities are managed or organised causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

Deaths as a result of a police shooting 

CPS prosecutors are sometimes asked to consider cases in which a person has died as the result of a police shooting. This may involve a decision about whether to bring charges against the officer who fired the shot that killed the person.

Although armed police may use lethal force, this must be reasonably necessary in all the circumstances. It may be reasonable for an officer to act with lethal force if they act on a mistaken, but honestly held, belief about the threat they are facing. Our prosecutor will consider all the circumstances when making a charging decision.

What happens when a case goes to court?

When a case goes to court a defendant will be asked to plead guilty or not guilty to the charges. If they plead not guilty then there will be a trial. To find the defendant guilty the magistrate, judge or jury (depending on which court the case is heard in) needs to be sure that the defendant is guilty. If they can’t be sure on the basis of the evidence that has been presented, then they must find them not guilty.

Our prosecution team will keep you updated as the case progresses through the court system. We’ll explain what you can expect at the trial and help you to understand any decisions the court has made.

Useful Contacts

Coroner

Coroners are independent judicial office holders. They are a type of specialist judge who investigates and explains certain kinds of deaths. There are currently 83 coroner areas across England and Wales.

Information on how to contact your local coroner can be found here:
https://www.judiciary.uk/courts-and-tribunals/coroners-courts/coroners-appointments-contacts-and-areas/the-appointment-of-senior-coroners/

INQUEST

INQUEST provides expertise on state related deaths and their investigation to bereaved people, lawyers, advice and support agencies, the media and parliamentarians. 

Their contact details are:

3rd Floor
89-93 Fonthill Road
London
N4 3JH

Telephone - 020 7263 1111
Website - www.inquest.org.uk 
Email - [email protected]

Prison Advice and Care Trust (PACT)

PACT is a national charity that supports prisoners, people with convictions, and their children and families.

Their contact details are:

Prison Advice & Care Trust
29 Peckham Road
London
SE5 8UA

Telephone - 020 7735 9535
Website - www.prisonadvice.org.uk
Email - [email protected]

The Prisoners’ Families Helpline is open 9am – 8pm Monday to Friday and 10am – 3pm Saturday, Sunday and bank holidays (excluding Christmas Day & Boxing Day).

Telephone - 0808 808 2003 (freephone – including most mobiles) 
Email - [email protected] (please allow up to three days for a response)

Prisons and Probation Ombudsman (PPO)

The PPO carry our independent investigations to help ensure that lessons are learned when someone dies in custody. They also carry out investigations into complaints to make sure that those establishments where people are being held and probation services are safe, and complaints are dealt with fairly.

Their contact details are:

Prisons and Probation Ombudsman
Third Floor
10 South Colonnade
London, E14 4PU

Telephone - 020 7633 4100 or 0845 010 7938
Website - https://ppo.gov.uk
Email - [email protected]