Claims against the prison service: injuries, assaults and deaths in custody

If you are worried about someone's safety in prison now, tell a member of staff when you visit or contact the prison's Safer Custody Team.

This guide is for people hurt in prison and families of people who died in custody. It covers who is responsible, the complaints system, legal aid and time limits, mainly in England and Wales, with notes for Scotland and Northern Ireland. It is general information, not legal advice. We are an independent information service, not a law firm.

Who is responsible

The Crown can be sued in tort as if it were a private person of full age and capacity, for torts committed by its servants or agents and for breaches of the duties that come with occupying or controlling property (section 2 of the Crown Proceedings Act 1947). Civil proceedings against the Crown are brought against the appropriate authorised government department (section 17), and the Ministry of Justice is on the published list. The Secretary of State can also contract with another person to run a prison (section 84 of the Criminal Justice Act 1991), and the complaints framework applies to both public sector and contracted prisons, so check who runs the prison before a claim is issued.

The courts recognise that prisoners depend on the prison for their safety. The Supreme Court listed prisoners, alongside children and patients, as examples of people who are especially vulnerable or dependent on the protection of the defendant against the risk of injury (Woodland v Essex County Council, 2013), and described detention in prison as the paradigm example of the state assuming responsibility for someone (Rabone v Pennine Care NHS Foundation Trust, 2012).

Common types of claim

• Unsafe conditions and accidents. Injuries from falls, faulty equipment or prison work can lead to a negligence claim, as they could outside prison.
• Assaults by staff. Force that was not lawful can lead to a claim for assault and battery. In A v Hoare (2008), the House of Lords departed from its earlier decision that section 11 of the Limitation Act 1980 does not apply to a deliberate assault, so the three-year injury time limit applies to deliberate assaults too. Serious cases can engage Article 3 of the European Convention on Human Rights: no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
• Attacks by other prisoners. GOV.UK says prisoners' rights include protection from bullying and racial harassment, and staff are trained to spot prisoners at risk of bullying, suicide or self-harm. A claim may be possible where the prison failed to take reasonable care to protect someone.
• Healthcare. Prisoners are entitled to the same standard of healthcare as anyone outside prison, and the usual clinical negligence test applies: whether the care was accepted as proper by a responsible body of medical opinion. See our medical negligence guide.
• Self-harm and deaths. Under the Human Rights Act 1998 it is unlawful for a public authority to act incompatibly with the right to life, and the Rabone case shows that relatives can bring claims in their own right.

Complaints in England and Wales

Prisoners may make a request or complaint to the governor or to the Independent Monitoring Board (rule 11 of the Prison Rules 1999). The Prisoner Complaints Policy Framework sets out the steps:

1. Complaint on form COMP 1, within 3 months of the incident or of finding out about it, with discretion for exceptional circumstances. A response is due within 5 working days, or 10 for a complaint against a member of staff.
2. Appeal on form COMP 1A within 7 days of the response, if you are unhappy with it.
3. Confidential access on form COMP 2, sent in a sealed envelope to the governor or director, or to the prison group director or the director's line manager in a contracted prison.
4. Independent Prisoner Complaint Investigations (IPCI), part of the Prisons and Probation Ombudsman. It can investigate once the prison's process is complete, if it has been less than 3 months since the final response or there was no reply within 30 working days, and the framework's leaflet adds a limit of 12 months from the incident. Postage is paid by the prison and letters are covered by confidential access.

The framework says neither the PPO nor IPCI has a role in litigation against the prison service, and they cannot investigate matters that are or have been the subject of civil litigation, or the clinical judgement of healthcare professionals. Complaints about healthcare in prison in England go through the NHS complaints procedure, with NHS England as the commissioner, and should normally be made within 12 months. A prisoner who is the victim of a crime must be allowed to report it to the police.

Legal aid and funding

Civil legal aid does not normally cover claims about personal injury, negligence or assault (Part 2 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012). Two exceptions matter in prison cases, subject to the financial eligibility rules:

• Abuse of position or powers by a public authority (paragraph 21): the act or omission must be deliberate or dishonest and must result in harm that was reasonably foreseeable. It does not cover clinical negligence.
• Significant breaches of Convention rights by a public authority (paragraph 22), again excluding clinical negligence.

GOV.UK also lists advice where a family member's death is going to a coroner's inquest among the problems legal aid can help with. Otherwise, ask a solicitor about a conditional fee agreement.

Criminal injuries compensation

The Criminal Injuries Compensation Scheme 2012 makes no award to an applicant who, on the date of the application, has a conviction for an offence that resulted in a custodial sentence, a community order or certain other sentences (paragraph 3 of Annex D, which applies to unspent convictions). In England and Wales, the rehabilitation period for a custodial sentence only starts once the sentence, including any licence period, is completed (section 5 of the Rehabilitation of Offenders Act 1974), so someone serving a sentence will have an unspent conviction. Visitors and staff injured by a crime of violence in a prison in England, Wales or Scotland may be able to apply; see our criminal injury compensation guide.

Deaths in custody

The Prisons and Probation Ombudsman launches an independent investigation whenever anyone dies in custody in England and Wales. A coroner must also investigate a death in custody or otherwise in state detention, and the inquest must be held with a jury if the death was violent or unnatural or the cause is unknown (sections 1 and 7 of the Coroners and Justice Act 2009). In Scotland, a fatal accident inquiry is to be held into a death in legal custody, subject to limited exceptions, and in Northern Ireland the Prisoner Ombudsman investigates all deaths in Prison Service custody.

Families may be able to claim under the Fatal Accidents Act 1976 where a death is caused by a wrongful act, neglect or default, and the estate can claim for the deceased's own losses. See our guides to inquests and fatal accident claims.

Scotland and Northern Ireland

• Scotland. The Scottish Prison Service is an executive agency of the Scottish Government; sixteen prisons are run directly by it and one by a private operator under contract. The Scottish Public Services Ombudsman looks at prison complaints after the prison's own procedure, and does not normally consider a complaint made more than 12 months after the person first had notice of the matter. Prisoners have the same access to the NHS complaints procedure as other people. Human rights claims against the Scottish Ministers usually have one year (section 100(3B) of the Scotland Act 1998).
• Northern Ireland. Complaints to the Northern Ireland Prison Service must be made within 21 calendar days of the incident, and a written response is due within 22 days. If you are not satisfied, you can refer the complaint to the Prisoner Ombudsman, who is appointed by the Minister of Justice and is independent of the Prison Service.

Time limits

• Injury claims, including assaults: three years from the incident or the date of knowledge in England and Wales (sections 11 and 14 of the Limitation Act 1980), Scotland (section 17 of the 1973 Act) and Northern Ireland (article 7 of the 1989 Order). For someone under 18, time usually starts at 18, or 16 in Scotland.
• Human Rights Act claims: one year beginning with the date of the act complained of, or longer if the court considers it equitable (section 7(5)).
• Claims after a death: three years from the date of death or later knowledge in England and Wales (section 12(2)), and three years in Scotland (section 18) and Northern Ireland (article 9(3)).

Frequently asked questions

Related guides: claims against the police, criminal injury compensation, medical negligence claims, fatal accident claims, inquests and time limits.

Official sources used for this guide: Crown Proceedings Act 1947, s.2; Prisoner Complaints Policy Framework; Prison Rules 1999, r.11; LASPO 2012, Sch 1; Criminal Injuries Compensation Scheme 2012; Coroners and Justice Act 2009, s.7. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.