Comment: How many more tragic deaths of children in custody?

By Helen Stone

In January 2012 17-year-old Jake Hardy was found hanging in his cell at Hindley young offenders institution.  Jake's inquest concluded in April 2014, when the jury delivered a scathing narrative verdict that detailed a dozen failures by the state which contributed to his death. The jury concluded that Jake died as a result of deliberate self-harm but was unable to establish beyond reasonable doubt whether he intended to cause his death. 

Jake's inquest cast grave doubts on whether state institutions have adequate systems in place to care for children in custody. The ensuing prevention of future deaths report by coroner Alison Hewitt confirmed that policies and procedures designed to protect vulnerable detainees at risk of self-harm were not adequately utilised in Jake's case. In damning terms, Hewitt raised concerns that some prison staff lacked sufficient aptitude, temperamental suitability or understanding for working with vulnerable youths.

The treatment and welfare of vulnerable young people in state custody has been called into question by coroners, juries, charities and bereaved families due to a succession of tragic deaths. There have been 31 deaths of people under 21 in state custody in the past three years and three self-inflicted deaths of children under the age of 18 in young offender institutions (YOIs) between April 2011 and January 2012. Two of these children's inquests, including Jake's, concluded earlier this year and the third is expected before the end of 2014.

The latest report by the Prisons and Probation Ombudsman Nigel Newcomen into a sample of 80 self-inflicted deaths in custody of 18- to 24-year-olds since 2007 refers to his 2013 report about three apparently self-inflicted deaths of children in custody, including Jake Hardy. Worryingly, the new report states that it "is disheartening and tragic to see a number of the same issues recur" throughout the cases. This clearly demonstrates that the issues relating to both children and young people need to be considered together. Recent statistics released by the Ministry of Justice reveal that self-inflicted prison deaths are at a ten-year high, with 88 recorded in the 12 months leading up to March 2014. This desperately sad and troubling statistic includes not only adults but also young people in custody.

Youths in state custody comprise a particularly vulnerable cross section of the population. The Prison Reform Trust has reported that 11% of young people in state custody have previously attempted suicide, while the rate of suicide in boys aged 15–17 who have been sentenced and remanded in custody in England and Wales may be as much as 18 times higher compared with the general population. In her report following Jake's death, Coroner Hewitt questioned whether prison and clinical staff in the environment of a Young Offenders Institution are able to manage the complex needs and possible increase in the risk of self-harm and suicide of vulnerable children.

The treatment of vulnerable teenagers in state custody is also central to an ongoing campaign and judicial review by Just For Kids Law. The charity organisation is challenging the home secretary's failure to implement legislative safeguards for 17-year-olds detained in police stations.

This is in response to the high court's judgment in the 2013 case of HC v Home Secretary. In that case the high court ruled the provisions of the Police and Criminal Evidence Act 1984 (PACE) – which established that 17-year-olds apprehended by police are treated as adults rather than children in police stations – were unlawful. Code C of PACE was amended, but after the decision amendments to the legislation were delayed. These laws are likely to be scrutinised again during the forthcoming inquest into the death of 17-year-old Kesia Leatherbarrow, who was held in a police station all weekend as a result of the impugned provisions of PACE rather than being moved to different accommodation. The underlying concern across all these cases is that prevailing policies and procedures, and often the staff that implement them, are ineffective in fulfilling the state's duty of care to vulnerable children in custody.

The Ministry of Justice announced in February that Lord Harris would head an independent review by the Independent Advisory Panel on deaths in custody into self-inflicted deaths of 18- to 24-year-olds in state custody. However there are no plans to expand the ambit of the review to include children, despite 16 of them dying in custody since the youth justice board was established in 2000.

The unequivocal conclusions of the jury in Jake's case confirm the scope of the review is too narrow. The issues and failures which arose in his case need to be considered in a wider context. The Inquest charity stressed in its January 2014 report into the deaths of children and young people in custody that problems faced by the two age groups overlap and are intrinsically linked. This nexus was recognised even more recently in the Prisons and Probation Ombudsman's July 2014 report, where he acknowledged that "the needs of 18- to 24-year-olds may well have more in common with those of the younger age group".

The close connection between the two age groups was demonstrated by the death of Ben Grimes. Ben was incarcerated as a teenager at Youth Offenders Institution Portland and turned 18 only six weeks before his death. In June 2013, the jury returned a critical narrative verdict at Ben's inquest, finding that authorities' insufficient communication and ineffective risk management had contributed to his death.  It emerged that reports outlining Ben's mental health illnesses and risk assessment were not shown to medical and prison staff when he was transferred from Feltham youth prison to Portland shortly before his suicide.

Medical and prison staff testified that they would have acted differently if they had been aware of Ben's risk factors. The coroner conducting the inquest, Sheriff Payne, subsequently issued a report highlighting his concern that there "should be a system to ensure that key members of staff have all of the relevant information to them… to ensure inmates at risk of self-harm are quickly identified". Similar failings were identified in Jake's inquest when the jury found there was a failure to record and consider reports of Jake' previous self-harm and thoughts of self-harm and suicide. This failure was found to have caused or more than minimally contributed to Jake's death.

The recent findings of inquest juries have confirmed the need for those working in the prison estate to adjust their practices to cultivate a better understanding of children and young people at risk of self-harming or suicide.  Inquest called for an independent review in its January 2014 report, emphasising that any public inquiry should be conducted by a body that is sufficiently removed from the issues being investigated. The Youth Justice Board published a report into the deaths of those in custody under-18 in February 2014, but this should not be viewed as a substitute for a comprehensive review into the issue. The Youth Justice Board lacks the requisite independence to conduct an impartial review into the self-inflicted deaths of children in state custody because it is the executive body that oversees the English youth justice system. It is apparent from the jury's verdict at Jake's inquest and the resulting prevention of future deaths report that there are many lessons still to be learnt about the treatment of vulnerable youths in state custody.

In the aftermath of Jake's inquest, the government needs to respond strongly to the mistakes that have been identified as contributing factors in multiple teenage custody deaths and implement swift reform where necessary. Excluding children from the scope of the independent review into self-inflicted deaths in custody is a failure to acknowledge this need, which really is one of life and death. 

By Helen Stone, a solicitor at Hickman and Rose, who acts for Jake Hardy’s family

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