Safety in prisons has come under increased scrutiny in the wake of a number of recent incidents, raising the very real threat of corporate manslaughter prosecutions in fatality cases.

Emily Thornbury MP has called for an investigation following death of a prisoner at Pentonville prison in October 2016. Jamal Mahmoud, a long-term prisoner serving sentences for robbery and concealment of a machine gun, was reportedly stabbed and thrown from a balcony. Whilst two prisoners have been charged with his murder, questions remain about how HMP Pentonville discharged its duty of care towards Mr Mahmoud. A spate of stabbings – six in total – occurred in the weeks following Mr Mahmoud’s death.

Press commentators, notably Professor Steve Tombs writing in the Independent, have argued that the time is right to test Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) against failing prison management systems, suggesting that a successful prosecution of a prison would send a powerful message that action must be taken and that prison deaths must not be regarded as routine occurrences.

Public bodies running prisons, like many public institutions, had long enjoyed crown immunity from prosecution in relation to safety matters. This has meant that cases involving legionella breaches, electrocution and death by hanging (to name but a few) which would almost certainly have resulted in prosecution in the private sector have given rise to no more than a ‘Crown Censure’ – a formal recording of a breach without a prosecution or fine. Crown immunity did not and does not extend to private contractors who operate prisons.

However, since the introduction of the CMCHA, the government’s intention to extend prosecutions under CMCHA to prisons has been clear: CMCHA contains express reference to breaches of duties owed to those held in custody (and in transport to and from custody) although the provision in question was not enacted until September 2011.

CMCHA introduced the new offence of corporate manslaughter – in short, a gross breach of a duty owed to a deceased which could be traced back to ‘senior management’ level and which caused their death. The offence is widely drafted and it is easy to see how it could be applied to failures in monitoring or assessment of prisoner risk factors if such failures can be traced back to ‘senior management’ level: systemic and repeated failures will serve as good evidence of organisational culture and will be used as examples of missed opportunities which managers have failed to grasp.

The real threat to prisons comes from the stark change from enjoying the protection of crown immunity to facing the threat of corporate manslaughter prosecutions where recent guidelines now suggest seven and even eight figure fines depending upon the scale of the organisation and the magnitude of the failing.