For the past 10 years prisoners have been committing suicide at a rate of around 1 per 1,000 prisoners annually. The Prisons Ombudsman and numerous Coroners have found repeated, wide-ranging and significant failings by the Prison Service in the management of prisoners at risk of self-harm which have contributed to many of those deaths. However, Crown immunity shields the Prison Service from prosecution for health and safety offences and the failings continue. Is it time for a rethink?
Managing Prisoners at Risk of Harm to Self
HM Prison & Probation Service has produced a prison service instruction which requires Governors/Directors of prisons in England and Wales to have in place procedures to identify, manage and support prisoners who are at risk of self-harm, and to reduce that risk. This includes procedures to ensure that:
- Prison staff are appropriately trained
- Prisoners identified as at risk of self-harm are assessed using Assessment, Care in Custody and Teamwork (ACCT) procedures
- Prisoners at risk are managed according to the level and type of risk they pose, up to and including constant supervision
- Serious incidents of self-harm are investigated at an appropriate level
- Following a death or near death in custody, initial and on-going liaison takes place between the prisoner’s nominated next of kin and the prison
- Learning from deaths in custody and incidents of self-harm or violence is identified, disseminated and acted upon
Broadly, the procedures are fine. The issue is that prisons don’t follow them.
Here are findings from a recent report by the Prisons Ombudsman following the suicide of a prisoner in HMP Wormwood Scrubs:
This is a shocking case. Although it is outside the PPO’s remit, we question whether Mr Clarke should have been in prison at all.
Mr [C] had been at Wormwood Scrubs for less than 24 hours when he hanged himself. He had a history of self-harm and attempted suicide, substance misuse and significant mental health issues. He had been arrested behaving bizarrely in the street and had arrived at the prison via assessment in a psychiatric crisis unit. He was also thought to have COVID-19. I am very concerned that, despite this, he was not assessed as being at risk of suicide or self-harm and I consider that more should have been done to support and manage his risks.
…The clinical reviewer also found that Mr [C] did not receive an acceptable level of care for his physical or mental health needs.
I consider that Mr [C]’s treatment at Wormwood Scrubs amounted to neglect. Although the prison told us that they have made changes since, we have made a number of recommendations, and I am also copying this report to the Prison Group Director for London…
Mr [C] was the eighth prisoner to die at Wormwood Scrubs since April 2018, and the fourth self-inflicted death. Since Mr [C]’s death, there have been two further self-inflicted deaths in November 2020 and March 2021.
In a previous investigation into a death at Wormwood Scrubs in November 2018, we found that some key information about risk for newly arrived prisoners was not properly considered and shared between healthcare staff and prison staff. The prison undertook to ensure that staff received training on risk management and that all prisoners with a history of self-harm would be seen by a prison GP on reception to the prison.
Here’s another recent report by the Prisons Ombudsman, following the suicide of a 25 year old prisoner in HMP Swaleside:
I am concerned that several opportunities were missed to identify and consider his risk of suicide and self-harm properly. It is particularly worrying that, despite his many risk factors, staff chose not to start suicide and self-harm prevention procedures when Mr [B] harmed himself and said that he would take his life.
Prison staff did not monitor Mr [B]’s self-seclusion in line with local expectations. They said that this was a direct result of ongoing staff shortages at Swaleside. Several other aspects of the expected prison regime were not initiated for Mr [B]. I am extremely concerned about ongoing staff shortages at Swaleside and how these affected the level of support and monitoring that Mr [B] received.
On the morning of his death, a roll check was not completed as it should have been. While proper completion would have identified earlier that Mr [B] had hanged himself, I cannot say that it would have led to a different outcome.
Liaison with Mr [B]’s family following his death was extremely poor. No one from Swaleside contacted them for over two months after staff from a neighbouring prison had broken the news. This is unacceptable and reflects badly on the prison.…
Mr [B] was the sixth prisoner to take his life at Swaleside since January 2021. In our report into the death of a prisoner in December 2021, we raised issues about prisoners receiving medication, that staff should consider all risk factors when assessing a prisoner’s risk of self-harm, and that allegations of bullying should be promptly investigated.
These findings and countless others by the Prisons Ombudsman, and various reports by Coroners concerned to ‘prevent future deaths’, point to repeated, significant, and wide-ranging failings in prisons across the country.
Health and Safety Enforcement
In order to meet their duties under the Health and Safety at Work etc. Act 1974 (HSWA), all employers operating in the UK, including the Prison Service, are required to take reasonably practicable measures to ensure the health and safety of employees and other persons who may be affected by their undertaking. Breach of these duties is usually a serious criminal offence for which organisations can be prosecuted.
This includes, for example, NHS Trusts, which can be and are prosecuted for health and safety failings that expose patients to risks of self-harm. In 2021, the Essex Partnership University NHS Foundation trust was fined £1.5m following 11 suicides between October 2004 and March 2015, principally for failing to manage adequately risks from fixed ligature points. So, why isn’t the Prison Service prosecuted for more serious and pervasive failings that have contributed to many more deaths?
Prosecutions are brought by and on behalf of the state, in effect the sovereign, and Crown immunity flows from the ancient concept that the sovereign cannot prosecute themselves. For this purpose, the Crown is not limited to the sovereign personally, but extends to all bodies and persons acting as agents of the Crown, including all elements of the Government, from Ministers downwards. Government departments, civil servants, members of the armed forces and other public bodies or persons are, therefore, included within the scope of the immunity. (NHS Trusts ceased to be Crown bodies over 30 years ago, a point returned to below.)
Crown immunity holds that, unless Parliament intends otherwise, onerous legislation does not apply to the Crown. In relation to health and safety, the HSWA provides that the onerous duties which it created do apply to Crown bodies; however, it does not allow Crown bodies to be prosecuted for breaching those duties. Crown bodies can be ‘censured’ by the HSE – but this is merely a reprimand by an obscure non-statutory process that is not open to the public.
The upshot is that HM Prison Service and the Scottish Prison Service cannot be prosecuted for health and safety offences, only ‘censured’, while contractors which operate private prisons can be prosecuted. The HSWA also allows for persons in the public service of the Crown (e.g. individual prison officers) to be prosecuted for breaching the general duties on employees to take reasonable care for the health and safety of themselves and others while at work. In practice, however, it is extremely rare for employees to be prosecuted for health and safety offences when their employer is not. Indeed, a reason for not prosecuting prison workers in the past is that their failings were considered only a relatively small part in more systematic failings. It is also possible for individuals to be prosecuted for gross negligence manslaughter; however, manslaughter is a very high bar for prosecutors and such prosecutions are rarely brought in this context.
A further anomaly is that Crown immunity was removed from the offence of corporate manslaughter. In 2005, the Labour Government recognised that ‘the Crown should not be exempt where it is in no different position to other employers or organisations’, and indeed had previously committed itself to removing Crown immunity from statutory health and safety enforcement when Parliamentary time allowed. Under the Corporate Manslaughter and Corporate Homicide Act 2007, however, corporate manslaughter is difficult to establish in the context of failings by the Prison Service because the offence requires failings by ‘senior management’. Many failings, even those attributable to systematic failings or a culture of indifference, may be judged to be failings at the prison level and therefore below the ‘senior management’ of the Prison Service.
Reasons Against Ending Crown Immunity?
The main argument against ending Crown immunity is that it would merely divert taxpayers’ money away from public services, potentially weakening services even further. However, the potential for harm to services can be mitigated, as it already is, for those public and charitable bodies that are liable to prosecution. The Sentencing Guideline for Health and Safety Offences already provides: ‘Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.’
There may be further arguments against ending Crown immunity relevant to other Crown bodies – such as that removal of Crown immunity may inhibit the Ministry of Defence in carrying out crucial, and dangerous, functions. But such arguments are not relevant to the Prison Service. While health and safety responsibilities of the Prison Service are far broader than managing the risk of self-harm, as already noted above contractors operating private prisons can be prosecuted for health and safety offences, so why not the Prison Service when similarly acting as an employer? Also as noted, already the Prison Service does not have immunity from corporate manslaughter.
Moreover, any potential downsides must be weighed against potential benefits. Here, that means compelling the Prison Service, under threat of criminal prosecution, from doing that which years of public censure has failed to achieve: remedying the repeated, significant, and wide-ranging failings in prisons across the country which have contributed to the deaths of possibly hundreds of inmates.
Improving standards, as it happens, is why Crown immunity was removed from the NHS over 30 years ago in the wake of a series of scandals, including a salmonella food poisoning outbreak in 1984 that contributed to the death of 19 patients. As Frank Dobson put it during a parliamentary debate in 1986: ‘It follows, as night follows day, that without that threat [of prosecution] there will be less outside regulation by the HSE and its staff and that the people working within the Health Service will not take the concept of health and safety at work as seriously as it is taken by those outside the Health Service and as seriously as they would take it if the notices and investigations could be followed up by court proceedings.’
That NHS Trusts are now commonly prosecuted for health and safety failings is not an unalloyed blessing. However, few would argue that the threat of prosecution is not an important tool in driving up health and safety standards, or that NHS Trusts should again be made immune from prosecution regardless of how egregious their failings. Which brings us to an essential point: prosecutorial discretion.
Prosecuting authorities have the discretion not to prosecute organisations when it is not in the public interest, even where the offence can be proved. Prosecutorial discretion is particularly important in health and safety cases because the law is so onerous: following a serious incident it is almost inevitable that breaches will be found. The question is: in which circumstances should organisations be prosecuted?
The HSE’s Enforcement Policy Statement states: ‘Prosecution is an essential part of enforcement, ensuring that where there has been a serious breach of the law, duty holders (including individuals) are held to account.’  HSE’s Policy Statement further provides that it will usually be in the public interest to prosecute if one or more specified circumstances apply, including:
- death was a result of a breach of the legislation
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it
- there has been reckless disregard of health and safety requirements
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance
- a duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk.
Further, the HSE will consider prosecution where one or more of the following circumstances apply:
- it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law, and conviction may deter others from similar failures to comply with the law
- a breach which gives rise to significant risk has continued despite relevant warnings from employees, or their representatives, or from others affected by a work activity.
In short, the HSE would have the discretion to prosecute only when circumstances require. When every circumstance identified above applies, the public interest arguments for prosecution are irresistible – and Crown immunity’s protection of such failure indefensible.
There is a wider point here about regulatory approach. The HSE’s Enforcement Policy Statement implicitly recognises that the real value of deterrence comes from prosecuting deliberate or reckless breaches, or organisational indifference. In practice, however, following serious incidents, the HSE spends considerable resources prosecuting even the most conscientious organisations, notwithstanding that there is a limit to what organisations can do to control for human fallibility.
However, in announcing their 10-year strategy last year, the HSE celebrated Great Britain maintaining one of the lowest rates of fatal and non-fatal work-related injury across Europe, and concluded: ‘The maturity of business and their increased level of understanding of safety risks means that we can look to regulate in different ways. This should allow us to focus on achieving similar improvements in workplace health.’
That focus on health is intended to include a specific focus on mental health and stress, which current trends show is increasing. ‘We will work to reduce this trend. Using our collective resource to focus on this problem, we will deliver interventions that make a real difference. To have a greater impact on workers’ health, society, and the economy, wider industry and business will need to help too.’
If the HSE really is open to regulating in different ways, it would do well to be far more discriminating in which cases it prosecutes, even following serious incidents, and focus criminal enforcement on the most culpable organisations and individuals. If the HSE is determined to make a real difference on mental health, the first place it should look is the Prison Service. The last reported ‘Crown Censure’ taken by the HSE in relation to prison suicide was over 10 years ago. The real need, however, is for the law on Crown immunity to change.
 PSI 64/2011 in relation to ‘Management of prisoners at risk of harm to self, to others and from others (Safer Custody)’.
 See R (on the application of Canham) v DPP  EWHC 3361 (admin).
 See R (on the application of Canham) v DPP  EWHC 3361 (admin).