Deaths in police custody rarely occur because of one person or one factor. It is usually a combination/accumulation of multiple risk factors with multiple deviations/failures from the safeguards - a creation of a ‘perfect storm’. 

For solicitors investigating a death in or following police custody, this means it can be misleading to examine individual decisions in isolation. The important question is often how the different stages of detention interacted: what information was available, who knew it, whether it was communicated, what risk assessments followed and whether the detainee’s changing presentation resulted in the appropriate escalation. Building an accurate chronology can therefore be critical when identifying where safeguards may have broken down. 

I have been engaged for deaths in police custody where detainees have died in their cells, or at hospital after falling ill within their cell; or they died before arriving at the custody unit. Common errors have included:  

• Severe intoxication not being recognised as a medical risk  
• Head injuries not being recognised as a medical risk  
• Withdrawals not being recognised as a medical emergency  
• Care plans and levels of observations not being correctly applied  
• Rousing procedures not being conducted correctly 

• Custody staff and HCPs not communicating effectively with each other, or understanding the parameters of each other’s role.  
• Custody records not being a reliable source of risk and care information  
• The HCPs not being brought to assess detainees for fitness to detain or review assessments  
• Staff too ready to assume a detainee is feigning illness  

These recurring themes can provide useful starting points when reviewing the evidence in a potential claim or inquest. Solicitors may need to consider not simply whether a particular procedure was missed, but why it was missed, whether earlier warning signs were present and whether information which should have prompted escalation was available elsewhere within the custody record, body-worn footage, CCTV, medical records, ambulance documentation or witness evidence. 

The emphasis must always be upon robust supervision and management within a custody environment to ensure compliance with established safeguards – procedures are there for a reason. The role and responsibility for ensuring compliance with safeguarding procedures rests with the custody sergeant. Custody sergeants must therefore be appropriately trained, and regularly assessed, to understand and manage the standards required.  

Clarity of roles and fully understanding one another’s parameters of responsibility are critical factors. Overall, the responsibility for detainee safety rests with the custody sergeant. Every other member of the custody team provides a service to the custody sergeant. The decision maker is the custody sergeant. They have the rank, authority and training to ensure actions are taken and safeguards are implemented.  

One such example case I was involved with concerned the custody sergeant believing the detainee was faking being unresponsive in the back of the van. The sergeant organised staff to carry the detainee from the van and into a cell. The sergeant instructed the HCP that the detainee was faking it and they just wanted the HCP to check his breathing. The HCP confirmed they were breathing. The sergeant then decided level 1 visits were appropriate without rousing so that they could sleep the intoxication off and recorded the HCP had deemed the man to be fit to detain. The HCP had not conducted a fit to detain assessment and was never asked to conduct such an assessment. The man died and the custody sergeant’s defence was that responsibility lay with the HCP as they were the medically qualified person, and that their assessment had been inadequate. But one must consider the fact that it is the custody sergeant who is responsible. The HCP only acts as an advisor, and the sergeant can err on the side of caution and send a detainee to hospital against the HCP’s opinion. The chain of events went wrong from the point of arrival at custody. If a person is unable to walk to a cell, they should not be carried to it. Unable and unwilling to walk are two separate issues. A medical emergency should have been declared at the custody bay. The man failed to pass the 4Rs assessments. The ambulance should have been brought to the custody bay, with the HCP attending to the man until the ambulance crew arrived. Custody sergeants should not try to influence a HCP into thinking a person is faking their condition.    

Another HCP/custody sergeant case involved a suspected drug consumption overdose. The custody sergeant informed the HCP that there was no problem taking the detainee to hospital, but the HCP stated they believed the detainee would be ok to stay in custody. The detention officer conducted visits but did not report a decline in the detainee’s presentation until the man was found unresponsive in the cell. Again, the debate between the HCPs advice and the custody sergeant’s responsibilities were a core issue. The detention officers act on behalf of the custody sergeant, so the sergeant needs to ensure that detention officers conduct visits appropriately. I do see some sergeants rarely attend to their detainees, leaving the visits and rousals to the detention officer. As the HCP service is a request service, the sergeant can also request joint visits for an at-risk detainee. Leaving a detention officer to manage a possible overdose risk is outside of their training and capability. The custody sergeant remains responsible and could have sent the detainee to hospital in line with the Authorised Professional Practice.     

“The custody officer is responsible for initialising the ongoing risk assessment of all detainees”.¹  

An overriding principle for the custody officer is that for those detained in custody their individual welfare needs are paramount.² The custody sergeant’s primary consideration is not that of the investigation. 

This distinction can become particularly important where responsibility appears to be passed between professionals. From a solicitor’s perspective, the fact that an HCP assessed a detainee does not necessarily resolve the question of whether the subsequent custody management was appropriate. The respective decisions, information available and responsibilities of the custody officer and healthcare professional may each require separate consideration. 

The HCP service was introduced within police custody facilities from 2006 and the introduction of the Safer Detention and Handling of Persons in Police Custody (SDHP). The HCP is a doctor, nurse or paramedic who has received a minimum of 5 additional days training to cover police custody forensic requirements. The HCP has two functions: 

• General Clinical Medicine - this is the doctor/patient relationship. When acting under their clinical role (doctor/patient function) they are required to comply with their HCPC³ registered body requirements. 
• General Forensic Medicine - this is the ‘request service’ from the custody function to conduct an advisory service or evidential service as part of the prosecution team. 

The HCP service is advisory to the custody sergeant, and the custody sergeant can obtain a second opinion or take that advice into account as part of their National Decision-Making (NDM) process. The custody sergeant must be specific about what advice and actions they require from the HCP, and what on-going service they require e.g. on-going joint visits for rousals and/or periodic reviews of the detainee.  

The custody record is therefore an obvious evidential starting point, but it should not automatically be treated as a complete account of what happened. Where the accuracy or completeness of the record is in issue, comparison with CCTV, body-worn video, medical entries, call logs, ambulance records and witness accounts can reveal discrepancies in timings, observations, reported symptoms or decisions. Those differences may be highly relevant when reconstructing what staff actually knew at each stage. 

“The custody officer must ask the HCP for clarification if any oral or written clinical directions are unclear”.⁴  

The custody sergeant is responsible for the accuracy and completeness of the custody record, so they need to ensure the HCP records risk and care information on the custody record. The custody record is the central data base for all custody staff to be aware of for the care and wellbeing of a detainee. 

Errors which I see occurring within custody units include the custody sergeant believing that the HCP is responsible and not them, once the HCP has assessed the detainee. I have heard custody sergeants state they are protected if they get the HCP to check a detainee over. Poor communication between the two roles is common with sergeants asking the HCP to simply “check them over”. The custody sergeant must be specific with what they want – such as a full fit to detain assessment and relay all risk information. They must then insist on a detailed briefing from the HCP regarding their findings and safeguarding advice. The sergeant has the authority to specify additional requirements and can obtain a second opinion. They do not have to accept a cursory ‘check over’.   

The HCP may then endorse the custody record for staff to look out for signs of withdrawals without establishing that staff actually know what to look for. I have had such examples where detainees have been retching/vomiting in their cells with stomach pains and staff being oblivious to these being signs of withdrawal. 

In cases involving healthcare input, it can therefore be important to identify precisely what the HCP was asked to assess, what information they were given, what examination was undertaken, what advice was provided and how that advice was understood and implemented by custody staff. A note stating that a detainee was “seen by HCP” may tell the solicitor very little about whether the relevant risk was actually identified and managed. 

Intoxication risk is often not recognised. Since 2006 the ‘walk and talk’ test has been in common use. If a detainee cannot walk unaided to a cell or hold a coherent conversation, they are not fit to go into a cell and require transfer to hospital. Custody staff not considering intoxication absorption also places intoxicated detainees at risk. For example, it can take up to an average of 90 minutes after the consumption of alcohol to be fully absorbed into the system. A drunken person could be drunk and incapable, and in need of urgent medical attention 90 minutes after placement into the cell. Combine this risk with drug intoxication and/or underlying health problems and the risk for a death in custody has significantly increased. Withdrawals can then impact the detainee the following day.  

Cases involving apparent intoxication require particularly careful scrutiny because intoxication can coexist with, or mask, another medical condition. The relevant question may therefore extend beyond whether staff recognised that the detainee had consumed alcohol or drugs. Solicitors should consider whether changes in consciousness, speech, mobility, behaviour, vomiting or responsiveness should have prompted reassessment, medical review or transfer to hospital. 

I see poor quality risk assessments being conducted with inappropriate care plans allocated. Staff are often reluctant to allocate a level 3 risk care plan due to the additional staff demands it places upon a custody unit. Staffing should never influence the correct allocation of risk care plan. If insufficient staff are available to manage the risk this should be ‘flagged’ with the on-duty custody Inspector and Superintendent.  

Where an inappropriate observation level is alleged, the analysis should not necessarily stop with the initial care-plan decision. It may also be relevant to establish whether the detainee’s presentation subsequently changed, whether the risk assessment was revisited and whether staffing pressures or operational considerations influenced the safeguards actually provided. 

Poor quality rousing procedures occur where staff visiting detainees, do not correctly follow the 4Rs: 

• Rousability - how easily do they awake and is their response normal? 
• Response to questions - can they hold a coherent conversation? 
• Response to physical acts - can they perform ‘normal’ function? 
• Remember medical conditions - have medical conditions been considered such as head injury, overdose, withdrawal, epilepsy, diabetes, heart conditions or stroke? 

Simply going to the cell, looking through the spy hole and watching the chest rise and fall is never an acceptable standard of a rousing visit.  

The detail contained in observation records can consequently be significant. A record showing that a check took place does not, by itself, establish that an effective rousing assessment occurred. CCTV may assist in determining how long officers remained at the cell, whether they entered it, whether meaningful interaction took place and whether the recorded response is consistent with what can actually be seen. 

Some detainees should never have been taken to a custody unit in the first place. For example, a detainee must be transported directly to hospital if they are drunk and showing any signs of being incapable.⁵ A detainee must be transported directly to hospital if they are, or have been, unconscious. The custody sergeant is the ‘safety net’ for persons brought to custody who should be diverted to hospital. 

For solicitors, this makes the period before formal detention just as important as what subsequently occurred in the cell. Arrest circumstances, transport, interactions with ambulance personnel, information supplied by arresting officers and the detainee’s condition on arrival can all be relevant to whether custody was an appropriate destination in the first place. 

All officers are required to use the National Decision-Making Model (NDM) for all decision-making processes. This means gathering available information concerning the arrest and detention of the person and utilising the officers and HCPs for more information; considering threats and risks; and then considering powers, policies and tactical options as per the College of Policing Authorised Professional Practice.   

The risk management is then required to be considered against a body of peers as ‘reasonable’ tactical options. Would a reasonable body of the similar role have made the same decision in accordance with professional practice requirements. 

Expert evidence can assist here by examining decisions in their proper operational context rather than with hindsight. The issue is not simply that a tragic outcome occurred, but whether the information reasonably available at the time should have led an appropriately trained officer or custody sergeant to take a different course. That distinction can be important when analysing both breach and the significance of individual departures from procedure. 

Police officers are only first aiders at best. They are not medical professionals, yet I often see officers ruling out a medical emergency and opting for the detainee ‘faking’ their condition. This issue has been addressed multiple times over the years regarding deaths in custody. The Rt. Hon. Dame Elish Angiolini DBE QC 2017 report “Report of the Independent Review of Deaths and Serious Incidents in Police Custody”⁶ also addressed this point stating:  

“There is also a tendency for some officers to consider that a detainee may be ‘faking’ a condition. However, police officers cannot afford to make such assumptions. It may lead to deterioration in a detainee’s condition going unnoticed, or indeed prove fatal.” 

The nature of a detainee’s crime for the investigative purpose does not ‘out-trump’ their risks. The final decision maker is always the custody sergeant. The HCP contributes to the sergeant’s decision-making process but has no authority to authorise detention or release from custody. The HCP has no authority to ‘over-rule’ the custody sergeant. The custody sergeant can seek a second HCP opinion, or demand a more thorough examination, or decide to remove a detainee to hospital against the HCP advice. It is the custody sergeant’s role to identify risk and mitigate that risk through management and implementation of the required safeguards.  

“The custody officer must be able to direct and call on resources to protect and provide safe detention.”⁷  

“The custody officer also has personal responsibility for the safe and lawful operation of activities in the custody suite.”⁸ 

In practical terms, a solicitor reviewing a death in custody should be looking for the complete chain of information and decision-making. Relevant questions may include: What risks were known on arrival? What information accompanied the detainee? Was it accurately recorded? Was an appropriate care plan put in place? Were observations and rousing procedures actually carried out to the required standard? Did the detainee's presentation deteriorate? Was medical advice sought and, crucially, was that advice understood and acted upon? Identifying where that chain failed can be more informative than focusing upon a single event immediately before the death. 

Use of force and carrying a person to the cell is a common factor in my cases. This tactic is known as a cell relocation technique when the person is moved from the van to the cell. This tactic requires the full supervision by the custody officer and the HCP. Before the detainee is left in the cell, the vital signs are required to be taken and to assess the person against the 4Rs. What I have seen in several cases, is staff remove the restraints, exit the cell and all walk away. This person should be monitored from the hatch as a level 4 person until they show they meet the 4Rs. Failure to meet the 4Rs should be a medical emergency and the ambulance service called, with immediate cell entry. Again, police staff tend to report ‘faking it’ as their thought process without any appropriate medical assessment and advice having been sought.  

The combination of risk factors must be considered. In this particular case, the detainee was intoxicated. He stated he had consumed a quantity of drugs just prior to his arrest. These drugs would still be absorbing into his system. He stated he regularly suffered withdrawals and had a heart condition. His condition deteriorated at the booking in desk, and having walked into custody initially he needed assistance to get to the cell. Within the cell he started vomiting and complaining of chest pain. He requested a doctor on multiple occasions. The HCP was not initially brought. An ambulance was not called. It was some time later when the HCP was contacted and the advice was given to call immediately for an ambulance. The man died in his cell before he could be taken to hospital.   

I have been involved with over 800 cases involving police custody procedures⁹ from the point of initial contact. Custody covers from initial detention, transport, use of force, hospital attendance and everything which occurs within the custody unit. Some deaths have occurred during restraint on the street or in the hospital when use of force safeguards have not been implemented. Some deaths have occurred in the cells when staff have not recognised the seriousness of a detainee deteriorating.    

Concerning deaths in police custody I have been involved with: 

• Crown Court Manslaughter cases 
• Coroner Courts 
• Fatal Accident Inquiries 
• Public Inquiry 
• Gross Misconduct 
• Civil claims