1. At the heart of the Prisons and Probation Ombudsman’s work on fatal incidents is a commitment to full, fair, open and transparent investigations. This commitment is essential if the Ombudsman’s investigation is to meet the aims set out in his terms of reference. Of particular relevance is the aim of assisting the inquest to meet the State’s obligations under Article 2 of the European Convention on Human Rights. This includes enabling the family to participate fully in the inquest, and ensuring that the full facts are brought to light. One of the Ombudsman’s aims is also to provide explanations and insight for bereaved relatives.
2. When dealing with disclosure under this policy, the question of what information should be disclosed to whom, and when, has to be set against the background of these aims.
The Ombudsman’s policy is that disclosure should occur as fully and as early as his terms of reference, and the law allows.
This document describes how that policy applies in practice.
3. Although this guidance applies to all members of the Fatal Incidents Investigation team including family liaison and administrative staff, for the sake of brevity only investigators are referred to.
4. The guidance refers to all the Ombudsman’s fatal incidents investigations regardless of whether the death took place in prison, young offenders institution (YOI), immigration removal centre (IRC), court, probation approved premises or after release. Also for the sake of brevity, this policy refers to the service in remit.
5. The policy should not be confused with the Ombudsman’s obligations under the Freedom of Information (FOI) Act 2000 and the Data Protection (DP) Act 1998. Where a written request is made, by any person, for specific information contained in documents held by the Ombudsman, then an obligation to disclose that information may arise under one of the acts, even if disclosure would not occur under this policy. Having said that, there are a number of exemptions from the disclosure obligations in the acts and, in many cases, the exemptions allow the Ombudsman to lawfully refuse to disclosure information which would also be withheld under this policy.
6. The Ombudsman has a separate policy on disclosure under the FOI and DP Acts. As strict time limits must be met when responding to requests made under the FOI Act (20 working days) and DP Act (40 days), investigators must act quickly in response to written requests for information. They should consult their line managers in the event that they receive a written request for information.
7. The Ombudsman’s powers of disclosure are set out in his terms of reference at paragraphs 5-7.
The Ombudsman is subject to the Data Protection Act 1998 and the Freedom of Information Act 2000.
In accordance with the practice applying throughout government departments, the Ombudsman will follow the Government’s policy that official information should be made available unless it is clearly not in the public interest to do so.
The Ombudsman and HM Inspectorates of Prisons, Probation and Court Administration, and the Chief Inspector of the UK Border Agency, will work together to ensure that relevant information, knowledge and expertise is shared, especially in relation to conditions for prisoners, residents and detainees generally. The Ombudsman may also share information with other relevant specialist advisers, the Independent Police Complaints Commission, and investigating bodies, to the extent necessary to fulfil the aims of an investigation.
8. Before individuals are asked to provide information – for example, during an investigation interview – they should be told that the information they provide may be disclosed to relevant parties, if this is necessary to achieve the aims of the investigation. The standard notices about the investigation and information given to interviewees explain this. However, investigators need to make sure that people giving information less formally are also aware that the information may be disclosed.
9. It is for the Ombudsman, or his staff on his behalf, to decide what information from the investigation should be disclosed, to whom, and when. It is the responsibility of the Ombudsman to make pre-inquest disclosure in order to satisfy the Article 2 investigative obligation. Coroners have their own obligations about disclosure of documents which are available to them. The Ombudsman operates on the presumption of disclosure and so investigators must take care that they only request and retain information which is relevant to the investigation. Material which is irrelevant to the investigation should be shredded or returned to the sender and not retained by the PPO.
10. The Ombudsman may disclose information to anyone whom he considers requires it in order to meet the aims of his investigation. This will include the organisations under investigation, and any specific individuals who may be subject to criticism. It will be particularly important in the pre-inquest phase to disclose information to the family of the deceased, their personal representatives, and anyone else who will be involved in the inquest, so that they can properly prepare for it.
11. Generally, information which is disclosed to one party will be disclosed to all parties. This means that any information disclosed to the family or their representatives before the inquest must be simultaneously disclosed to the service in remit and the Coroner. (NB the Memorandum of Understanding with the Coroners Society provides that the Coroner will be supplied on request with copies of redacted and unredacted documents.) In some circumstances, it may be relevant to disclose information to prisoners or approved premises residents, for example, where there is specific comment or criticism of their actions. Families occasionally ask for the draft report to be sent to a third party such as their legal representative. The report remains confidential until after the inquest.
12. The Ombudsman would want to disclose information to anyone the Coroner would consider a ‘properly interested person’ at the inquest. But he is not restricted by the Coroner’s decision as to who is an ‘interested person’. It is for the Ombudsman to decide to whom information should be disclosed in order to meet the aims of his investigation.
13. The Ombudsman may disclose information to specialist advisers, and other bodies conducting related enquiries, for example, the NHS, the National Patient Safety Agency, Her Majesty’s Inspectorate of Prisons, Her Majesty’s Inspectorate of Probation, Care Quality Commission or Social Services.
14. Under this policy, there are two things an investigator must consider when deciding whether to disclose documents gathered as part of an investigation.
• The investigator should first consider whether the document is relevant to the investigation.
• The investigator should then consider whether there are any restrictions on disclosure or exemptions, for example, because of information on third parties or sensitive information, which it is in the public interest not to disclose.
15. These considerations may make it necessary to redact, summarise or withhold all or part of a document. Any document which is redacted will be made available in an unredacted form to the Coroner on request.
16. As stated above, even if the investigator’s judgement is that a document or any information contained in it should not be disclosed under this policy, an obligation may still arise under the Freedom of Information Act or the Data Protection Act. The Ombudsman’s policy on requests for information under those Acts will apply in those circumstances.
17. Under this policy, the Ombudsman will only disclose information that is relevant to the investigation. Before disclosing each piece of information, the investigator should therefore satisfy himself that all or part of it is relevant to the investigation and its aims. Where a document is composed of relevant and irrelevant information, only the relevant information should be disclosed. The investigator should take advice from his/her line manager if asked by a family to disclose information that he/she considers irrelevant.
18. All the information in an investigation report, and its annexes, must be relevant to the investigation. When drafting reports and deciding on the inclusion of annexes, investigators must always apply the test of relevance. If a piece of information or a document is not relevant, it must not be included. It follows that investigation reports and annexes will almost always be subject to full disclosure, unless any of the information falls into the exemptions set out below. As a minimum the documents that are annexed will include all those which have been prepared by the PPO, such as the clinical review and the interview transcripts, which are not available elsewhere. Each report will list the other documents which have been read by the investigator but are not annexed. If the PPO holds these documents, and they are not sensitive (see below), then they will be disclosed on request.
19. There are a number of types of information that may be considered to be 'sensitive' and careful consideration must be given before disclosure. Under this policy, disclosure should be withheld when to do so would be against the public interest. The investigator must consider the information which is relevant to the investigation and decide whether, for example, disclosure might prejudice national security, or the security of a prison, court or immigration removal centre security, or be likely to prejudice the administration of justice.
20. In practice, it will be rare for documents to be withheld entirely, without providing even an outline of the information in them. If documents are being withheld entirely, the investigator should normally confirm that they exist, unless there is a good public interest reason not to do so.
21. The originator and the security manager at the establishment must be contacted about the release of ‘sensitive’ information prior to its disclosure, and informed if the information is disclosed. In some cases appropriate redactions must be made to the documents disclosed.
22. As set out above, the Ombudsman’s policy on requests for information under the FOI or the DP Act will need to be considered where a written request has been made for disclosure of sensitive information. There may be exemptions from the rights of access under those acts which apply and investigators should seek advice from their line manager on the application of these exemptions.
23. Care needs to be taken with security information reports where disclosure might, for example, prejudice future collection of information, or endanger sources of information. There may be grounds for redacting the reports, summarising them in general terms in the Ombudsman’s report, or withholding them. It is unlikely that it will ever be necessary or proper to disclose the name of a prisoner or detainee who has supplied information to staff. However, the administrative sections of an SIR might be copied to demonstrate how quickly the information was acted upon and how seriously it was treated. Other security information, particularly information with potential Public Interest Immunity implications, must not be disclosed.
24. The PPO and the Prison Service have agreed the following arrangements:
• Copies of SIRs must be provided by the establishment but the source of the intelligence will be deleted or made unreadable. If the SIR is of a confidential nature, it can be sent via the Brent fax to the National Intelligence Unit (NIU) who will arrange for it to be delivered to the PPO.
• Should the PPO request information about the source of the intelligence, the Head of Operations/Security will consider it on a ‘need to know’ principle and, if in agreement, will indicate the nature of the source. If the Head of Operations/Security disagrees, then the matter will be decided upon by the Governing Governor.
• In the event that there is no satisfactory resolution, the matter will be referred by the Governing Governor to the NIU for consideration by the Head of Security Group and to the Ombudsman by his representative.
• If the source of the security information is identified by the Prison Service as a Covert Human Intelligence Source (CHIS) (that is, a confidential informant whose identity is not widely known), then the Prison Service can neither confirm nor deny their existence within the establishment. Applications by PPO staff which may identify a CHIS will be referred to NIU in the first instance
25. There are two main issues regarding the disclosure of CCTV images. The first is that disclosure may compromise the security of the establishment, such as disclosure of keys or lock mechanisms. The other is the infringement of the rights, under the Data Protection Act, of those who appear in the footage and whose presence was incidental to the death in custody.
26. All CCTV evidence obtained from a third party (eg the police) should be checked by the ‘owner’ before it is disclosed to the PPO investigator. The footage must be stored and transferred safely, especially prior to redaction. CCTV evidence should be redacted before disclosure by the PPO, for example by removing pictures of other prisoners if they are not relevant to the investigation. The advice and assistance of the ‘owner’ will be necessary. When disclosure does take place, all parties should receive a copy.
27. The PPO may arrange for CCTV footage to be viewed, rather than making a copy. For technical reasons, viewing may take place at a suitable location such as the prison or police station.
28. Transcripts of the deceased’s telephone conversations may well be obtained in the course of the investigation. Care should be taken to protect the privacy and confidentiality of the person being spoken to before the transcript is disclosed to anyone else. The transcript may need to be redacted beforehand (e.g. by removing the words spoken by the other person). Disclosure to the person being spoken to is more straightforward than disclosure to a third party.
29. Letters and papers written by the deceased may be found after the death. They may be removed by the police or Coroner’s officer and it is important to consult them before disclosing to anyone else. Such correspondence may include letters which have not been posted or which had been passed for posting, as well as suicide notes and diaries. Suicide notes are not always written in letter form and messages may be left in other formats such as being written on the wall of the cell.
30. Chronologically the PPO investigation is the third investigation of the death, after the police and Coroner, and so the PPO does not usually retrieve such correspondence. When the PPO does obtain it first, the papers should be given to the Coroner and disclosure should only be with their agreement. Care should be taken to protect the confidentiality of the people referred to in any material. It is however permissible to inform the next of kin of the existence of the material.
31. Photographs of cells and maps of prisons, immigration removal centres, court cells and custody suites must not routinely be disclosed. The investigator must seek the advice of the relevant security manager, whether of the prison or the court, before such documents can be disclosed.
32. Care should also be taken before disclosing any information which might put the residents of an approved premises at risk.
33. Legal privilege documents between the Prison Service and their lawyers, Treasury Solicitors, should not have been disclosed to the PPO. If the PPO does receive any legal privilege documents they must be returned to the prison.
34. Documents containing third party names and details e.g. other prisoners’ ACCT documents or Safer Custody meeting minutes containing names of prisoners must be appropriately redacted if it is decided to disclose.
35. Once the investigator is satisfied that the information is relevant to the investigation, they must then go on to consider whether there is an exceptional reason for it being exempt from disclosure. There are two exemption tests - whether the disclosure of third party information would be unlawful, and whether disclosure of any information would be against the public interest.
36. The Ombudsman has a Memorandum of Understanding (MOU) with the Association of Chief Police Officers (ACPO) which considers the sharing of information and evidence. The MOU states that:
“The PPO may only subsequently disclose information obtained from the police investigation if he considers that the public interest in making the disclosure outweighs the public interest in maintaining confidentiality.”
37. The police will provide the investigator with copies of statements taken by them, the deceased’s police custody record and police antecedents. The PPO investigator must check with the investigating police officer whether they have concerns about disclosing the information contained in police statements. When the police are concerned about onwards disclosure, the senior investigating police officer will consult the Crown Prosecution Service.
38. Investigators must consider particularly carefully the question of whether third party information (ie information about an identifiable third party) should be disclosed, or whether disclosure would be unlawful. The relevant legal tests are set out below.
The Data Protection Act 1998 and Article 8 of the European Convention on Human Rights
39. The disclosure of irrelevant third party information will often be unlawful under the terms of the DP Act 1998 and Article 8 (right to private and family life) of the European Convention on Human Rights. It is therefore essential that the investigator is satisfied that the disclosure of any information about a third party, passes the test of relevance (ie disclosure is necessary to fulfil the aims of the investigation). As noted above, the aims of the investigation include enabling the family to participate meaningfully in the inquest.
40. Where disclosure of the information is relevant, it is unlikely to be a breach of the principles in the DP Act. Under Article 8, disclosure of third party information can be made in order to protect the rights and freedoms of others. This includes the right to a proper Article 2 investigation. So disclosure of relevant information is also unlikely to be a breach of Article 8. However, the more sensitive the third party information, the more care needs to be taken that full disclosure is required to meet the Article 2 investigative obligation. For example, information that a third party has HIV and is a prostitute would need to be of particular relevance before it should be disclosed. If it seems that disclosure of the information in full may not be necessary and proportionate, investigators must consider whether documents could be anonymised or redacted without compromising the aims of the investigation. Documents containing third party names and details (for example, ACCT documents relating to other prisoners or Safer Custody meeting minutes containing the names of other prisoners) must be redacted before disclosure.
41. It is not absolutely necessary to get the consent of a third party to the release of relevant information about them. However, once an investigator has decided that information is relevant to the investigation and if consent has not been sought when the information was collected, it is preferable to seek consent or let the third party know that the information is to be disclosed, where it is practicable to do so.
Common law of confidentiality
42. The Ombudsman may owe a duty of confidentiality in relation to information that is provided to him in confidence. However, the fact that someone says that information is provided in confidence does not necessarily make it so. For example, information already available from another source, or normally available from the inspection of records, cannot be made confidential by labelling it so. It is necessary to consider the content of the information in order to decide whether it has genuinely been provided in confidence. It will almost always be unlawful to disclose genuinely confidential information if it is not relevant to the investigation.
43. On the other hand, it may be unlawful not to disclose confidential information if it is relevant to the aims of the investigation and disclosure is necessary to meet the Article 2 investigative obligation. In these circumstances, the investigator will have to balance the duty of confidentiality against the Article 2 investigative obligation, and try to find a compromise if appropriate. For example, it may be possible to meet both the confidentiality and the Article 2 duties by providing the information in a summary, anonymous or redacted form.
Articles 2 and 3 of the European Convention on Human Rights
44. There may be circumstances when the disclosure of relevant third party information would put a third party’s life or safety at risk, and therefore breach their own right to life under Article 2 or their rights under Article 3. There might be a conflict between the Article 2 investigative obligation and the Article 2 or Article 3 rights of the third party. If there is a real risk of breaching a third party’s Article 2 or Article 3 rights, then the third party information should not be disclosed. But consideration should be given to whether documents can be anonymised or redacted to avoid compromising the Article 2 investigative obligation.
Disclosure of medical records
45. There are specific issues in relation to medical records and public interest questions. The family of the deceased will almost certainly have a right under the Access to Health Records Act 1990 to the medical records of a family member who has died, and public interest questions do not have to be considered. This applies irrespective of whether or not the information is relevant to the aims of the Ombudsman’s investigation.
46. But in relation to medical information about a third party, public interest questions do come into play. Medical confidentiality exists to protect both the individual and the broader public interest in the provision of a confidential medical service. So disclosure of relevant third party medical records can lawfully be withheld when it is considered to be in the public interest. Medical confidentiality must only be breached where it is really necessary and proportionate to do so in the public interest, or to protect the public.
47. The same considerations apply to other records, such as those made by a therapist in the course of counselling sessions.
48. It is quite common to receive requests to disclose documents before the investigation has started. It is important that investigators do not disclose information before making sure it is relevant and time must be taken to do this. The investigator must however release a document as soon as they have decided it is relevant. If a request for information is made under the FOI then the investigator must address it within the time limit stipulated by the Act. As the holder of the information the investigator is obliged to respond to the request, and such requests should not be passed to the originator of the document, although they may need to be consulted. (It may save time to ask the service whether they have an objection to documents originating from them being disclosed but, if they object and the investigator disagrees with their objection, the final decision is still the investigator’s.)
49. Publication of any information might prejudice the inquest process and so recipients will be advised that the information should not be forwarded to anyone else.
50. During the course of the investigation, the Ombudsman will have access to a number of documents. Most of these will be records from the relevant service, but some will be from other sources, such as the police (for example police statements, custody records). Documents may be disclosed during the course of the investigation, but before the report has been drafted, as long as the tests set out above are met. For example, it may be that early disclosure of documents to the family allows them to raise relevant issues during the course of the investigation, or provides them with a full opportunity to prepare for the inquest. All parties to an investigation must be informed when documents are disclosed to one party prior to issuing the draft report.
51. If there is any doubt as to whether the documents should be disclosed, the views of the relevant organisations or individuals must be sought. These views should be carefully considered, but the Ombudsman is not bound by them. At the end of the day, the decision on disclosure remains a matter for him.
52. The PPO operates on the basis of full and simultaneous disclosure to all parties to the investigation and the family’s needs for the information are paramount. However, from time to time, specific and substantial criticisms are made of individuals in the draft report. This is covered in paragraph 37 of the Ombudsman’s terms of reference which read as follows:
If the draft report criticises an identified member of staff, the Ombudsman will normally disclose an advance draft of the report, in whole or part, to the relevant authority in order that they have the opportunity to make representations (unless that requirement has been discharged by other means during the course of the investigation).
53. In these cases, the draft report should be advance disclosed to the service in remit. For this to apply, the criticisms should refer to an intentional or reckless failure to follow local or national policies and/or instructions. This failure must have, or potentially could have, contributed to the events leading up to or surrounding the death of the prisoner concerned. An example of a criticism that warrants advance disclosure is a nurse who refuses to attend a prisoner. Minor criticisms do not warrant advance disclosure. An example of a minor criticism is an officer who does not sign an ACCT review.
54. The purpose of advance disclosure is to allow the individual who is criticised the opportunity to check that their actions and accounts are described accurately in the PPO report. In exceptional cases, when the inquest is imminent (ie within the next 28 days), it may be necessary to waive the consultation with the service and the individuals in order to ensure that the family has a fair opportunity to participate in the inquest. The investigator will need to balance the circumstances of each case carefully.
55. Feedback to the whole report is not required at this stage as a further period will be allowed when the report is also disclosed to the bereaved family.
56. In the event of advance disclosure being necessary, the draft must be sent first to the service which employs (referred to as the employer) the individual who is criticised. The individual may be employed by a healthcare agency and not by the establishment where the death took place. In cases where the individual is not a direct employee of the National Offender Management Service, a copy of the report must be sent to Safer Custody and Offender Policy group and the Governor/ manager of the establishment. The investigator should make clear in the covering letter that specific named individuals within the service should be given a copy of the draft report, or any relevant specified parts. The employer is responsible for making the draft report available to the individual who is criticised.
57. When in doubt, the investigator must always err on the side of prior consultation with the service and should seek advice from his/her team leader. When deciding on advance disclosure of the draft to the employer or individuals concerned, the investigator will bear in mind the need to make sure that the family has the draft report in sufficient time to prepare for inquest, to enable them to make an informed contribution.
58. The employer and the individual who is criticised will be given 21 days to comment on the facts. The timescale will rarely be extended as the PPO’s duty is to disclose to the family as soon as possible. The investigator will take account of these comments and decide on further disclosure. The investigator will always tell those involved of the decisions in relation to any comments or objections provided, and the reasons for them.
59. The advance disclosed report will not normally be disclosed at a later date to other parties to the investigation.
60. Unless the Ombudsman believes that there is a grave risk to other prisoners, residents or detainees, the advance disclosed report will not normally be disclosed to the establishment where the death took place, unless they are the employer, or to any other agency.
61. Unless the draft report is advance disclosed, the report and annexes are sent at the same time to the bereaved relatives and the relevant service to allow a factual check and an opportunity to respond to the draft findings and recommendations. A period of 28 days will be allowed for this process. The same procedure will be followed if the investigator publishes a second revised draft report. A copy of the draft report will also be sent to the Coroner.
62. Generally it will suffice to write the response to recommendations under the relevant recommendation in the main body of the report. However, investigators may include the whole of the relevant service (and the family) response to the draft report as an annex if they decide it is necessary to do so. Action plans received from the relevant service will also be annexed. Care should be taken to ensure that the copy list and contact details are redacted.
63. Occasionally feedback from one party to the report may be likely to give rise to serious concerns from one of the other recipients. An example would be when a draft recommendation is re-directed to another party or an additional recommendation is made. In these circumstances, the Ombudsman will consider whether the report should be issued in draft for a second time.
64. The finalised copy of the report will be sent to the recipients of the draft. The investigator will also review whether there are any additional individuals or organisations who should receive the report. The investigator should set out in a covering letter any changes that have been made to the report since the draft was issued.
65. From time to time the inquest may uncover additional information which is relevant to the Ombudsman’s Terms of Reference and additional recommendations may be identified. In the event of substantial changes being made or additional recommendations proposed, the report will be re-issued as a draft following the procedures already described.
66. There may also be requests for additional disclosure after the inquest is over. The investigator will consider each request in the light of this guidance.
67. After the inquest, anonymised reports will be published on the PPO website. There is separate guidance on the process for doing this.
68. All parties to whom disclosure is made before the inquest should be told that the information is provided in confidence. Bereaved relatives should be told that, prior to the inquest, the documents can only be used for the purpose of preparing for the inquest.
69. It should be made clear to all parties when the report is a draft, and they should be warned that the final version may be different.
70. Bereaved relatives will be asked if they want to see the report, and if so, how they wish to receive it. If they wish to receive it personally in a meeting with the investigator, this will be arranged. Although the family liaison officer reads each report before it is sent out, the investigator must let the family liaison officer know if there is anything that could be distressing or sensitive in the documentation, so that the family can be forewarned.
71. A record must be kept of all the documents that have been disclosed, to whom and when. The investigator should also keep a record of any decisions not to disclose information and of the reasons for such decisions. The originator of the document should be informed that disclosure is taking place and documents should be disclosed simultaneously to the other interested parties and the Coroner.
Prisons and Probation Ombudsman July 2009