R (Scarfe & Ors) v Governor HMP Woodhill & SoS Justice [2017] EWHC 1194 (Admin), 23.5.2017
HMP Woodhill has achieved the unenviable status of having the highest rate and the highest number of self-inflicted deaths of any prison in the entire prison estate. Thirteen men have died there since 2013 at their own hand, seven of those in the last year. The eleven inquests that have recently been held in the Milton Keynes Coroner’s Court have produced several critical jury findings and a number of PFD[1] reports yet the alarming death rate has persisted.
It is unsurprising then that the families of some of the deceased, believing effective changes have not been made, turned to the High Court for action. They argued that the High Court should use its public law powers to ensure that the repeated failings noted in these successive cases were no longer tolerated.
The Woodhill Prison Governor and the Justice Secretary made it clear that they shared the great concern of the Claimants, the Court and other commentators (such as INQUEST who intervened in the proceedings) about the rate of suicides in prisons generally, and at HMP Woodhill in particular. The difficulty for the Claimants, however, was establishing the extent to which the identified problems at HMP Woodhill were capable of solution by means of their application for an order or declaration from the High Court.
It was not that the Coroners’ PFD reports were being ignored. The various post death reviews at HMP Woodhill had identified a plethora of individual failures by staff to comply with the requirements of the Prison Service Instructions (PSIs). The prison had, without exception, accepted all the recommendations made by the Coroner and the Prison and Probation Ombudsman (PPO) which underlined the need for compliance with those PSIs that were relevant to suicide prevention. The prison had acknowledged that operational errors had been made by the staff and had produced reports and action plans in response to the various recommendations that sought to address the deficiencies identified, and so prevent mistakes being repeated. Yet, tragically, errors were still being made.
The relevant law was not in dispute: a decision maker must comply consistently with published policy and a failure to comply with a mandatory provision of the policy may justify a finding of breach of public law duty. The contents of the relevant PSIs were not being criticised by the Claimants; the issue was the frequency with which those PSIs had not been followed by staff – it was on the interpretation of those facts that the parties differed.
The Claimants contended that there were significant similarities between many of the deaths to establish that, despite accepting the post-death recommendations and preparing action plans in response, “similar failings” were being repeated in successive cases. The Claimants argued that these repeated mistakes must represent systemic failures.
The Court did not agree. Lord Justice Irwin and Mr Justice Garnham considered that the crucial legal issue was whether the suicide of prisoners arose from a failure to have systems in place or a failure of individuals to operate those systems. Making identical, or very similar errors, of practice, could point to a systemic fault in the design or supervision of the system. However the Court found that overall the evidence did not suggest that the same mistake was being made time and time again. Instead, the evidence demonstrated that different mistakes were being made in specific factual circumstances. The Court did not accept that these repeated, but different, operational errors could be fairly characterised as a system fault.
The frequency of mistakes did not, of itself, demonstrate a failure of the system but instead, that this was a system prone to operational error. The court found this “unsurprising”, given that the system here concerned the inter-relationship between prison officers and prisoners:
“Where there are human beings involved on both sides of the arrangement, in situations of some stress and complexity, and where there are inevitably numerous distractions from the performance of what are often important but routine tasks, the scope for mistake is substantial.”
Having found that the deaths arose from individuals’ errors rather than flaws in the system and policies themselves the court found that the remedy the Claimants sought, of a mandatory order requiring prison staff to comply with prison policy, would serve little purpose.
Comment
A record 119 people killed themselves in prisons in England and Wales in 2016 according to Ministry of Justice figures – an increase of (32%) on the previous year. This represents a doubling of the prison suicide rate since 2012. That there is one self-inflicted death in prison every three days should be a significant concern for all of our society.
Where there are operational failings individual civil remedies are properly available to those who had lost loved ones, with damages awarded in civil claims. Yet, the difficulty faced by the Claimants in the present case was that the they could not establish any systemic failing of the sort which would be amenable to the type of relief that could be given by the Administrative Court in Judicial Review proceedings.
The prison service was not ignoring the issues these cases raised and had already taken action – but as the court recognised, systems operated by humans are fallible.
It is perhaps no surprise that humans are continuing to get things wrong in circumstances where significant cuts to prison staffing continue while prisoner numbers rise. Psychiatric morbidity is known to be high in prison and many NHS mental health teams providing services within prisons are struggling to help the huge volumes of prisoners in desperate need.
Stressed and over stretched staff will of course be more error prone, but it is difficult to see how that will be resolved by an injunction, or a mandatory order, or a declaration by the Court. The Court felt that the Claimants’ submissions came close to an argument that “something must be done”, without identifying what it was that could be done.
Indeed, the Court recognised its own impotence when stating: “this is not a problem with which the Courts are equipped to deal in generality. Suicides in prison raise complex societal issues. The solution to those problems, acute as they are, lies not with judges applying principles of public law but with those who have the unenviable task of managing prisons.”
Recruitment and retention of staff in prisons has been described as a system in “meltdown”[2] with morale at an all time low. If we expect our front-line prison staff to manage prisons with a reduced, overstretched and at times de-motivated work-force then, sadly, we can expect more inquests into avoidable prison deaths.
Footnotes
[1] A “report to prevent future deaths” pursuant to paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009
[2] https://www.theguardian.com/society/2017/feb/19/prison-officers-pay-to-rise-in-bid-to-tackle-jail-safety-crisis?CMP=twt_gu