Scarfe & Ors, R (on the application of) v HMP Woodhill & Anor

A series of operational mistakes by prison staff does not, without more, establish a systemic failure engaging the State’s general duty under Article 2 ECHR. The court must examine the character of the errors. Identical or very similar errors may indicate a defect in the design or supervision of a system, whereas repeated but different errors may remain individual operational failures. Frequency alone is insufficient. Judicial review relief is discretionary and is unlikely to assist where the relevant policies are satisfactory, have been accepted by the authorities, and the proposed declaration or mandatory order would not determine liability for individual deaths.

The claimants, relatives of prisoners who died by suicide at HMP Woodhill, and a former prisoner at risk of self-harm, sought judicial review declarations and mandatory relief. They alleged continuing breaches of domestic public law duties and Article 2 ECHR duties arising from failures to comply with national suicide-prevention and medical-emergency policies.

The evidence identified numerous failures in individual cases, including deficiencies in ACCT procedures, risk assessments, training, observations and emergency responses. The central issues were whether those failures demonstrated a systemic defect and whether the proposed relief was appropriate.

1. Systemic and operational failures. The relevant question under Article 2 was whether the deaths resulted from a failure in the operation of the system, rather than merely from individual failures by prison officers or administrators. The distinction depends on the character of the errors, not their number. Identical or very similar errors may indicate a systemic defect in the design or supervision of the system. Repeated but different operational errors may not do so.
2. The Scott Schedule showed distinct operational mistakes in suicide prevention. Failures to identify risk factors, complete ACCT documents, identify protective measures, conduct emergency procedures or make observations at unpredictable times were different errors in particular circumstances. The evidence did not establish that the prison’s procedures, training or supervision caused the same mistake to be repeated, or that a practice of non-compliance was tolerated or encouraged.
3. The court was not satisfied that the evidence established a breach of the requirement for ACCT refresher training according to local training needs. The instruction requiring unpredictable observations was clear, but the evidence showed individual errors rather than a systemic failure comparable to a routine practice of disregarding an operational order.
4. Although a failure to comply with a mandatory published policy may constitute a breach of public law duty, and the State owed general positive obligations to protect prisoners’ lives, the claimants had not proved the systemic failure necessary for the declaratory and mandatory relief sought.
5. Relief was in any event discretionary. The policies were not criticised, the defendants had accepted the Coroner’s and PPO’s recommendations, and action had been taken to address identified deficiencies. A declaration or mandatory order would have limited effect in determining whether any particular officer’s failure caused an individual death. The claim was dismissed.

Not stated in the judgment.