Crown Immunity (Prisons)

I beg to move,

That leave be given to bring in a Bill to make provision to remove Crown immunity as it applies to prisons for the purposes of health and safety legislation.

Katie Allen lived in Clarkston in East Renfrewshire. She had a loving family and a very happy childhood. She was bright and did well at school. She took herself off to Malawi to volunteer, and she returned from Africa determined to help people. Instead of studying geology at university, as she had intended, she switched to study human geography, because she decided and realised that it was people whom she cared about and not rocks. She was excited about the future. She had moved into her own flat. She was full of life. She was beautiful and she was loved. She was found hanging in a cell at 5.50 in the morning on 4 June 2018 at His Majesty’s Prison and Young Offender Institution, Polmont.

The problem of prison deaths is UK-wide, but these losses are a particular problem in Scotland, and the loss of young people in prisons is felt especially. Research in April by the Scottish Centre for Crime and Justice Research found that our prison death rates are akin to those in Azerbaijan. An earlier study by the Council of Europe found Scotland’s prison suicide rate was more than two-and-a half-times higher than the average and about double that of England and Wales.

I begin with Katie’s story because focusing on her case helps makes sense of why this problem is so alarming, so acute, and so avoidable. In 2017, after a night out, Katie drove home after drinking, clipped the kerb, and lost control of her car. She had not realised it, but she had hit and injured a pedestrian. She had no previous convictions. Her victim asked for her not to be given a custodial sentence, but she was jailed for 16 months anyway. If anyone deserved a second chance after a stupid, youthful mistake, it was Katie. That second chance was taken away because of failings by the Scottish Prison Service.

We cannot mention Katie without also mentioning William Brown, whom my hon. Friend the Member for Glasgow North (Martin Rhodes) represents. William also died from suicide in Polmont. The fatal accident inquiry into the loss of both those precious young people found their deaths to be preventable. Thanks to the sheriff’s findings, the failings of the prison service in these cases are now well documented, detailed and damning. One thing out of the 400-page report, with its many findings and recommendations, especially sticks in my mind. When we look into prison suicides, we learn an awful new vocabulary. We come across terms such as “ligature anchor”. For William, the ligature anchor was a bunk bed that the inquiry found could have been removed and, worse, had been used previously for suicides in the prison. In the case of Katie, the ligature anchor was a simple doorstop high up on the wall of her cell. A doorstop that would have cost a few pounds to replace—a small cost for saving a young life, but it was not believed to be worth it.

Years after both deaths, nobody in the prison or the prison service had thought to remove the doorstops, or to replace them with safer, sloping alternatives. The bunk beds had not been removed. The fatal accident inquiry into the deaths found that internal reviews carried out after both deaths had not even mentioned the possibility of removing fixtures in cells that could have been used again for further suicides. For me, nothing signifies the institutional lack of care more than these failings for which somebody, somewhere should have been held legally responsible.

Before a fatal accident inquiry, there is an investigation. The police and the Crown Office and Procurator Fiscal Service concluded at first that there was insufficient evidence to prosecute. The families of Katie and William challenged that conclusion, and eventually the authorities said that, yes, there was enough evidence to charge the Scottish Prison Service with breaches of the Health and Safety at Work etc. Act 1974.

However, there was no prosecution. Why? Because of Crown immunity. The Health and Safety at Work etc. Act places duties on state-run prisons, but Crown immunity means that they cannot be prosecuted for breaching those duties. If the two people had died in a privately run prison, there would have been a prosecution. In theory, individual prison officers can be prosecuted, but in practice they rarely are when their employer is not also prosecuted. Indeed, the reason those prosecutions do not happen is that it is argued that individual shortcomings happen in the context of systematic failures. In theory, the prison services can also be prosecuted under corporate manslaughter legislation, but in practice they are not because the systematic failings are often judged to take place at the prison level, rather than at the senior management level of the overall service. Those at the bottom pass legal responsibility upwards; those at the top pass it back.

Even with the support of the dogged campaigners at the charity Inquest, which focuses on state-related deaths, nobody is found legally responsible. The best that the families of the lost can hope for in such circumstances is a censure by the Health and Safety Executive, but even that toothless sanction is almost never used—in a decade, only one prison has received a censure.

We have been here before. Three decades ago, Crown immunity was removed from the NHS and it has had an impact. To take one grimly comparable case, the Essex partnership university NHS foundation trust was fined £1.5 million for allowing suicides after failing to manage the risks caused by ligature points on its estate. Our prisons are responsible for many more such deaths, but they are untouchable because of Crown immunity, and an untouchable service remains unaccountable. Institutional impunity removes the incentives for institutional change—institutional change that is needed at the local Scottish level and the UK level. Locally, a review of mental health at Polmont warned that it needed a suicide prevention strategy, but instead it opted for another review—a review that was never finished.

In Scotland, the Human Rights Commission has warned that recommendations agreed decades ago have still not been implemented across the Scottish Prison Service. Just last week, the inspector of prisons for the whole UK issued an urgent indication warning about conditions at Pentonville and a failure to address repeated concerns following recent suicides. Without legal consequences, prisons across the country appear to be incapable of learning lessons or making changes. Every day of immunity brings the risk of more avoidable deaths.

The Scottish Prison Service and the Government in Edinburgh have called for Crown immunity to be removed, but they need us in this place to do it. I want to be very clear: this campaign should not be used as an excuse for inaction now. These places should not have to wait to be prosecuted to fulfil their responsibility to protect lives, but if those running our prisons will not act—and they have not done so—they should lose their protection from legal consequence.

In conclusion, I remember a friend of mine who lost a child saying how a parent grieves twice for such a loss: once for the young person known and loved, and a second time for the life that they would have gone on to live. For Katie’s family, the knowledge that she wanted to live a life devoted to helping and serving others invites them to imagine all the change that she would have made as she grew into adulthood. Instead of a life that would have changed the world, we in this place are left with the tragic responsibility of making sure that it is her death that changes things.

Katie’s extraordinary mother, Linda, told me that she said of her experience in Malawi in Africa:

“you know mum, prayers are great, but what people really need is practical help.”

Katie’s family, William’s family and the others who have lost dear loved ones due to these institutional failings do not need our prayers, our sympathies or our condolences. They need action. They need us to provide the accountability that will avoid future tragedies and change the culture that allows these deaths. That is why it is time to end Crown immunity in prisons in Scotland and across the UK. I urge Members to support my Bill.

That Blair McDougall and Martin Rhodes present the Bill.

Blair McDougall accordingly presented the Bill.