Fragmented approach to duty of care for detained persons highlighted by Lay Observers in Annual Report

In his second annual report to the Secretary of State for Justice, the Chairman of Lay Observers for England and Wales details failings in the care of people held in custody at courts and transported between police stations, prisons and courts by escort contractors.


In his annual report for 2016-17, Tony FitzSimons highlighted the Ministry of Justice’s lack of a coherent approach to exercising its duty of care to detained persons resulting in:

  • Inaccuracies and incomplete information in the person escort record documentation used by police, prisons and escort contractors to assess a detainee’s needs and risk factors – 15% of those reviewed by Lay Observers in March 2017 had omissions of important information including gaps relating to healthcare and medication.
  • Inadequate access to both physical and mental healthcare in detention – people withdrawing from drugs without proper healthcare as some contractors deem treatment to be ‘seldom urgent’ and around 30% of courts not having sufficient mental health support despite the roll-out of mental health liaison and diversion teams.
  • Uncertain capacity to participate in court proceedings – lack of detailed guidance on ‘fitness for trial’ which takes account of the cognitive state of detained persons while in custody.
  • Unsatisfactory arrangements for the care of children and young people held in court custody – although specially trained staff care for children and young people under escort from secure establishments to court in an adapted car, once in court they are treated like adults and held in a windowless cell under the supervision of a custody officer without specific training.
  • Court custody environments that are unsafe, dirty and unsuitable for vulnerable detained persons – few cells with CCTV, alarms not working, poor sanitation and poor disabled access.


The Secretary of State for Justice has a duty of care for approximately 50,000 people under escort and in court custody every month. However, elements of this duty are carried out by a range of agencies and contractors in a fragmented way – the police, HM Prison and Probation Service, HM Courts and Tribunals Service, the Youth Justice Board, the contracted escort and custody companies (Serco and GeoAmey), the Legal Aid Agency and NHS contractors are all responsible for elements of detained persons’ welfare. Without proper protocols or service level agreements between the various agencies, the Secretary of State lacks a robust assurance mechanism that manages risks adequately. The result of this is unacceptable failings that impact on the care and welfare of detained persons.


Tony FitzSimons said:

“What goes on in court custody and under escort in cellular vehicles is a largely hidden part of our justice system. As Lay Observers, we have a duty to speak up about the failings we routinely identify. These were illustrated in a very grim way in the inquest into the death of Mr Sivaraj Tharmalingam at Thames Magistrates Court in April 2015, as a result of multiple failings by Serco, the police and the Force Medical Examiner.

Unfortunately, similar conditions remain today and unless we address the root cause – a fragmented system with a lack of clear and accountable approach to exercising the duty of care owed to detained persons – we will continue to find that people’s welfare and access to justice is put at risk unnecessarily.

We are therefore calling for an overarching authority to provide assurance and oversight of all contractual arrangements affecting the welfare of detained persons. This would, in turn, ensure that there are robust written protocols and service level agreements to clarify responsibilities in relation to the duty of care owed to detained persons.”


Read the report in full here.


Notes for Editors:

Lay Observers are independent people appointed by the Secretary of State under S.81(1)(b) of the Criminal Justice Act 1991. They have a duty to inspect the conditions in which Detained Persons are transported or held by escort and custody contractors in England and Wales.

Lay Observer expectations for detained persons

For all those in escort and court custody we expect:

  • Detained Persons to be treated with dignity and respect, free from discrimination;
  • Access to justice for Detained Persons, with all being given information about their rights and having the ability to access legal advice;
  • Detained Persons to be held in suitable accommodation that is clean safe and fit for purpose;
  • Detained Persons to be transported promptly in suitable vehicles;
  • Transport and custody to be managed in a way that supports Detained Persons’ wellbeing;
  • Responsible people properly exercising their duty of care in relation to Detained Persons’ health and personal care needs.For more information about Lay Observers see