Ministers lose bid to delay bereaved family suing prison service

Allan Marshall, from Carluke in South Lanarkshire, died in 2015 aged 30

The Scottish government has lost a legal bid to halt court action brought by the family of a man who died after being restrained by up to 17 prison officers.

Allan Marshall died days after being held face down while in custody at HMP Edinburgh in 2015.

In what is thought to be a legal first in Scotland, his family raised a civil court action under human rights laws for a breach of his right to life.

A request for the case to be temporarily halted for six months was rejected by Lord Sandison.

Mr Marshall's aunt, Sharon MacFadyen, brought the action against the Scottish Prison Service (SPS) for breaching the father of two's rights under article two of the European Convention on Human Rights.

The case is also directed against Police Scotland and the Crown Office, for breach of their duty to adequately investigate Mr Marshall’s death and hold those responsible to account.

Government lawyers argued the case should be delayed because Police Scotland were investigating the circumstances surrounding Mr Marshall’s death.

They said that could result in criminal charges being brought against the Scottish Prison Service - an agency ministers are responsible for operating.

They claimed that continuing with the case would mean the government would have to state a position in relation to the possible criminal charges, potentially prejudicing any future any criminal case.

Allan Marshall's family is suing the Scottish Prison Service

Lord Sandison pointed out no-one had been charged with any offence and that there was no indictment available for analysis.

He said there were some cases where the "prospect of criminal proceedings is so clear, and their likely nature so obvious, that the absence of charge, complaint or indictment will not present an insurmountable hurdle" to delaying the case.

The judge continued: “In this case, however, it remains entirely unclear whether the current investigation will reveal a sufficiency of evidence to support a prosecution in respect of any particular offence or, if it does, whether the second defender will consider it in the public interest for any such prosecution to be undertaken."

He also said it was unclear when it would be known if anyone would be charged as the "police investigation continues at a somewhat stately pace".

Lord Sandison said "speculation" was not "an adequate ground upon which to reach any conclusion that adherence to the normal timetable in these proceedings poses any real and specific risk of prejudice to the effective prosecution of any crime which may or may not have been committed".

According to the judgment, the family are seeking legal orders stating that the defenders acted unlawfully and are seeking damages from the defenders.

Mr Marshall, from Carluke in South Lanarkshire, was 30 when he died while on remand awaiting a court appearance over unpaid fines and breach of the peace charges.

Officers said he had become agitated, but rather than calling for medical assistance, they moved him to the segregation unit and physically restrained him, holding him face down.

Despite much of the restraint being recorded on CCTV no-one has been held accountable for what happened to Mr Marshall.

The Crown Office granted full immunity to all prison officers at HMP Edinburgh, ruling out any prosecution.

Earlier this year the BBC revealed a Crown Office review had said the decision to give immunity had been "incorrect".

Financial penalty

The case will next call in court in the near future.

If successful, it could result in a substantial financial penalty for the SPS, Crown Office and Scottish government.

Commenting when the legal action was launched, a Police Scotland spokeswoman said: “We have received instruction from the lord advocate to investigate possible corporate responsibility by the Scottish Prison Service.

"We are not able to comment further at this time due to the live nature of this investigation.”

An SPS spokesman said: “Our thoughts remain with Mr Marshall’s family. As this is subject to proceedings it would be inappropriate to comment further.”

The Scottish government also said its condolences remain with the family but could not comment further.