deaths in custody

Deaths in Custody

In February 2024, the third annual report into deaths in custody in Scotland was published. It found that 244 people had died in custody or under the control of the state between between October 2022 and September 2023. 38 people died in prison and the death rate in 2021-23 was 618 (per 100,000) compared to 242 (per 100,000) in 2008-10. It also found that suicide (6) and drug deaths (7 plus 5 suspected) accounted for between one-third to one half of all deaths in prison custody in 2022-23.

On 17 June 2024, the Death in Prison Custody: Action Plan - March 2024 Update was published. It’s useful to look at this alongside the Council of Europe’s annual penal statistics which were published on 5 June 2024. They showed that only 3 countries in Europe have a higher prison suicide rate than Scotland. The European median is 5.3 suicides per 10,000 prisoners. In England and Wales the rate is 9.3. In Scotland it’s 18.9.

Deaths in Prison Custody in Scotland 2012-2022

On 30 August 2023, the Scottish Government published a report entitled, ‘Deaths in Prison Custody in Scotland 2012-2022’. It’s the data and evidence produced by the Deaths in Prison Custody Action Group (DiPCAG) which was set up to provide independent oversight and leadership to the implementation of the recommendations of the Independent Review of the Response to Deaths in Prison Custody. It found that 350 people died in prison in Scotland between 2012 and 2022, with the death rate having more than trebled over that period.

The Chairperson of DiPCAG, Gill Imery, gave evidence to the Criminal Justice Committee on the report on 20 September 2023. She was very critical of the lack of progress and of SPS’s attitude to her group’s work. 

'Still Nothing to See Here' Follow Up Report

On 30 November 2022 a follow up report (‘Still Nothing To See Here’) from the University of Glasgow on Deaths in Custody and Fatal Accident Inquiries (FAIs) was published. It found that there were more deaths in Scottish prisons over the past 3 years than in any other 3 year period on record; that the chance of dying in prison in 2022 was twice that of someone who was in prison in 2008; and that there had been a 42% rise in suicides since SPS’ suicide prevention policy (TTM) was introduced.

It was followed on 14 December 2022 by a follow up report to the Independent Review of the Response to Deaths in Prison Custody: Progress Report, published by the Scottish     Government.

Independent Review of the Response to Deaths in Prison Custody

On 30/11/21 HMIPS, Families Outside and SHRC published the Independent Review of the Response to Deaths in Prison Custody. It contained a great number of recommendations under the following 5 themes: Family contact with the prison and involvement in care; Policies and processes after a death; Family contact and support following a death; Support for staff and other people held in prison after a death; and SPS and NHS documentation concerning deaths. Its key recommendation was “that a separate independent investigation should be          undertaken into each death in prison custody. This should be carried out by a body wholly independent of the Scottish Ministers, the SPS or the private prison operator, and the NHS.”

Allan Marshall FAI Recommendations

On 21 January 2021 (18 months after the FAI), the SPS advised Allan Marshall’s family of their decision not to implement three of the 13 recommendations from the FAI. One of the recommendations not implemented referred to the use of feet by prison officers when restraining prisoners. As we know there is no legal imperative for the SPS (as with other organisations) to adopt the recommendations of this or any other FAI.

This tragic case continues to give rise to various questions about past and current practices within the prison service: as early as the preliminary hearing, control and restraint documents required by the inquiry were knowingly withheld and unnecessarily redacted by SPS. Vital evidence was destroyed, and on multiple occasions, statements given to the FAI by both prison officers and senior management were flatly contradicted by CCTV evidence, leading Sheriff Gordon Liddle to describe prison staff as "mutually and consistently dishonest". SPS then went to great lengths to try to keep the CCTV footage out of public sight. In an extremely rare move, the officers called to give evidence at the FAI, were granted immunity from prosecution. 

All the prison officers, bar one, initially told the inquiry that they were unaware of any officer using their feet during the restraint. When confronted by the video evidence, most of them changed their position, with one officer describing his own behaviour in using his feet to "stamp on" Mr. Marshall, as "totally out of order". Officers used their feet on more than ten occasions, which were clearly seen in video evidence. Expert witnesses confirmed that the use of a foot was not a recognised control and restraint technique and were quite clear that the use of feet was not justified. Both of the expert witnesses advised of the particular risks to breathing associated with the use of feet.

However, SPS has chosen not to implement the recommendation to provide specific training on the use of feet as a control and restraint technique, or to specifically disallow it. Instead, "in exceptional circumstances" SPS will allow its staff the scope to use dangerous and unapproved control and restraint techniques for which they haven't received specific training. Our belief is that Allan Marshall's death occurred in such "exceptional circumstances" - exactly the type of circumstances in which prison officers needed to know how to mitigate the potential consequences of their unapproved actions, either through thorough training or by being prevented from using such potentially life-endangering actions at all. 

In October 2019, SPS advised that they would be unlikely to implement Sheriff Liddle's recommendation that a clear policy be put in place where prisoners presenting with symptoms of psychosis must not be placed under physical restraint until they had been assessed by healthcare professionals and it having been deemed safe for the prisoner to be restrained. It has taken until January 2021 for SPS to reiterate that this would "be challenging to implement ... given SPS' duty of care that requires prison officers to respond immediately where an individual is at risk of harm to themselves or others" and that "[t]here is a section within the revised manual designed to begin to address these challenges ... with a focus on de-escalation". Almost six years after Allan Marshall's death, there isn't a clear policy to prevent this happening to someone else in the future, merely a section in a training manual which "begin[s]" to address these challenges and a statement that "SPS is giving further consideration to prevention strategies and managing behaviour in order to avoid the need to use restraint". 

In much the same way that the FAI determined that it can't be left to SPS to choose what evidence to redact, Howard League Scotland believes that it shouldn't be up to SPS to decide which of the recommendations they're going to implement and which they're not. Their conduct in this case suggests a wish to actively avoid external scrutiny, and in some circumstances, to behave with impunity. SPS's long-overdue response to the recommendations of the FAI is far from satisfactory and should not go unchallenged. 

 

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