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. 

On 25 June 2020, SPS published their Covid19 Route Map. Previous communication had referred to an unpublished Pandemic Plan and an explanation of how SPS planned to ease prison regime restrictions was keenly awaited. It contained a huge amount of operational detail, covering a wide range of areas. It was criticised by many, however, for being overly complex and being targeted at various audiences - both internal and external. It contained no information re timeframes of moving between phases, although advised that this would not necessarily mirror the rate of lifting of similar restrictions in the wider community. We were particularly troubled by the advice that transitions from each phase would be "premised [firstly] on having the appropriate level of staff resource available to safely make these changes for all who, live, work and visit our prison estate" i.e. not premised on the wellbeing of prisoners or human rights obligations.

It was published against the backdrop of a Ministerial Statement on 17 June 2020, which advised that the 15% reduction in the prison population should not be temporary.