Families ‘shut out’ of fatal accident inquiries after deaths in custody

Families of those who died in police or prison custody are being shut out of fatal accident inquiries, despite the fact their involvement could improve the outcome, says new research. 

Research by Glasgow University looked at 196 deaths in prisons covering almost 15 years from 2005 to 2019. The university found that the “isolated, narrow way” deaths in custody have been assessed in FAIs, led statutory inquiries to have a “limited impact” on improving care in custody. 

Early findings released to MSPs in the Scottish Parliament’s justice committee last month found that more than nine out of ten FAIs sheriffs made no recommendations to improve practice.

But the completed study – published in full today – also found that in cases where families were involved, sheriffs were three times more likely to make findings based on lessons learned from their deaths. 

The researchers have called for the barriers to involvement facing families whose loved ones have died in custody – including a lack of legal aid and support – to be urgently addressed. 

Barriers for families

In a statistical briefing – Nothing to See Here? –  researchers reported families were only present in 31 per cent of FAIs and only 16 per cent had legal representation. Just 17 per cent gave evidence at the hearings.  

Lengthy “retraumatising” delays in FAI hearings were documented.  In the case of one young man, who died in prison by hanging, ten days of evidence heard during the FAI, were spread out over more than a year.

The young man, referred to only as JP, had gone to a police station with a knife in an agitated state and ended up in prison. Though on constant observation in the police cell, he did not receive a full mental health assessment on arrival in jail, and paperwork on mental health concerns was not passed on by police.  

His family gave evidence at the FAI saying they had raised concerns with the prison before his death, and their lawyer suggested all new prisoners should undergo an assessment by a qualified mental health nurse or psychiatrist. This was “dismissed by the expert witness for the prison service as impractical” and not upheld by the Sheriff. 

Researchers also looked at the case of Allan Marshall, who was on remand at Edinburgh’s HMP Saughton when restrained with a towel over his head and dragged face down across a corridor by a number of officers.

He died four days later in Edinburgh Royal Infirmary from multiple injuries after being placed in an induced coma. In a damning FAI report, published in 2019,  the Sheriff said his death had been “entirely preventable” and made a list of 13 recommendations for improvement by the Scottish Prison Service (SPS), nine of which have been wholly or partially implemented. However the SPS said it does not intend to implement the others. 

‘Hundreds of questions’

Sharon MacFadyen, Marshall’s aunt, said his family attended “every single day” of the “harrowing” FAI but was left with “hundreds of questions”. She was able to employ a lawyer and an advocate with the help of  legal aid, which would otherwise have cost £140k, an “impossible” amount for family members to raise. 

“It was horrendous to be honest,” she told The Ferret. “They kept on playing the CCTV footage and there were lies and more lies. The Sheriff was very good but it was really hard.  

“I don’t understand why some evidence was heard and some not, why certain witnesses called and others, like the governor of the prison, were not. I was left feeling that it had not been properly investigated.”

The finding that family involvement increased the cases of recommendations made was unsurprising, she added. “We’re the ones working out what happened, trying to make sense of it all. Because it’s our loved ones that have been lost. I’m not saying Allan was an angel. But he didn’t deserve to die.”

Linda Allan, whose daughter Katie completed suicide while serving a six-month sentence in Polmont for drink driving offence, during which she knocked a teenager unconscious, said she had no faith in the fatal accident inquiry system. 

Allan worked alongside researchers at Glasgow University to analyse the FAI documents and spoke with other families affected. 

We are the ones working out what happened, trying to make sense of it all. Because it’s our loved ones who’ve been lost.

Sharon MacFadyen, Allan Marshall’s aunt

She claimed “little effort” was made by authorities to trace families who did not come forward. “Partners and families I have spoken to have an awful lot to say if only someone would ask them,” she added. “One of the key issues is access to legal aid, which shuts a lot of people out.

Allan continued: “Me and my husband have good salaries but we are only able to afford legal representation because we have a legal team working on the case pro bono. Even then we’ve had to pay for things like a second legal opinion, which cost £4k, because the one the Crown instructed was appalling.” 

Allan said she came to believe that a FAI in her daughter’s case would be “futile” and “retraumatising”. “Grief never goes but I’m further on in the process and once again, I am going to have to confront pictures of Katie having hung herself,” she said.

“I don’t have images like that going round my head now – I’ve replaced them with images of her laughing and enjoying life. But going back there will retraumatise me and for what?”

Instead, Allan is calling for a public inquiry into all deaths in custody, to try and make sense of the structural failings that she believes plague the system. 

Our really simple research questions driving this study was: what are FAIs for? We are still uncertain as to what the answer to this is, based on the data we saw.

Dr Sarah Armstrong, Glasgow University

Dr Sarah Armstrong from Glasgow University who led the research, said the evidence showed that “the system set up for investigating these tragedies is itself not working”. 

“That’s not a tragedy, it’s a potential crime,” she added. “Our really simple research question driving this study was: what are FAIs for? We are still uncertain as to what the answer to this is, based on the data we saw.

“The FAI process has not supported change that has any impact on suicide or drug overdoses in prisons. In fact these kinds of deaths are increasing.”

There was “a worrying tendency to treat those who have drug issues in prison as lying about the health conditions that ultimately killed them”, she added while the management of drug withdrawal in prisons highlighted by FAI reports, raised concerns. The research also highlighted that those dying of “natural causes” struggled to get appropriate healthcare, she claimed. 

‘Careful case management’

A spokesperson for the Crown Office and Procurator Fiscal Service said it would not expect recommendations to be made on every FAI, which are mandatory for all deaths in custody. 

They added: “Every investigation relating to a death in custody is subject to a careful case management process which includes the identification of recurring themes and patterns in concluded FAIs and in ongoing investigations.

“COPFS has revised its practices to expedite death investigations and is committed to ensuring its obligations in the family liaison charter are met in every case.”

A spokesperson for the Judiciary of Scotland said that when deciding whether to make recommendations in an FAI, a sheriff “must carefully consider the facts and evidence that are presented to the court by the represented parties”. 

A Scottish Government spokesperson confirmed it had commissioned Her Majesty’s Chief Inspector of Prisons for Scotland, along with a representative or families of prisoners and a human rights expert, to undertake an independent review of deaths in custody. The group is due to report later this year. 

“The safe treatment and mental health of all those in custody is a key priority for Scotland’s prisons, which care for people with higher levels of risk and vulnerability than the general population as a whole,” they added. 

“We are determined any lessons that need to be learned will be learned, and that all appropriate agencies must look closely at the outcome of fatal accident inquiries.”

Cover image of Katie Allan.