Family to sue prison service over death of inmate

Allan Marshall died days after being restrained by prison officers

The family of a man who died after being restrained by up to 17 prison officers is suing the Scottish Prison Service (SPS), the Crown Office and Scottish ministers over his death.

Allan Marshall died days after being held face down by prison officers at HMP Edinburgh in 2015.

In what is thought to be one of the first cases of its kind in Scotland, his family has now raised a civil court action under human rights laws for a breach of his right to life.

Their lawyers said the aim was to ensure those responsible were “held to account” and to try to enact change within the Scottish prison system - which has one of the highest rates of deaths behind bars in Europe.

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

The family of Mr Marshall say they are bringing the case because every other possibility has been thwarted or exhausted.

They have gone through an initial police investigation and a fatal accident inquiry but they still don't feel anyone has been held accountable for what happened nine years ago.

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.

Much of the incident was captured on CCTV.

At various times it involved 17 prison officers with some of them using their feet, which is not a technique that is taught for use when restraining inmates.

According to the fatal accident inquiry, one officer said he used his feet 10 or more times and also stamped on Mr Marshall. He later admitted it was out of order.

Mr Marshall died in hospital four days later.

The cause of death was brain injury due to cardiac arrest during physical restraint.

An independent psychiatrist told a BBC Disclosure investigation that Mr Marshall was clearly suffering psychosis and needed psychiatric help.

Last year the BBC revealed Police Scotland had been told to investigate whether the Scottish Prison Service should be prosecuted over his death.

The lord advocate instructed police to examine whether the prison service had corporate responsibility but the family said there had been little progress since then.

Mr Marshall’s brother Alistair and aunt, Sharon MacFadyen, say someone needs to be held accountable

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

The Crown Office - Scotland's prosecution service - 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".

Mr Marshall’s aunt, Sharon MacFadyen, has now raised a court claim against the prison service using human rights laws.

The right to life is protected under Article 2 of the European Convention on Human Rights, incorporated into UK law through the Human Rights Act 1998.

Her lawyers said that the Crown’s decision to grant immunity to the prison officers meant this was now one of the only remaining routes to securing accountability.

Ms MacFadyen’s court action 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, which is also a requirement under Article 2.

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Mr Marshall's brother Alistair said: “We’ve been fighting for justice for Allan for nine years.

"Allan was killed in prison when he needed medical support.

"No-one has been held responsible for that. The system has failed Allan. We hope that through this court case we can finally get accountability.”

Barbara Bolton, legal director of JustRight Scotland, is working on the case.

She said: “This case highlights the urgent need for transparency in deaths that occur in State custody.

"Research shows a troubling rise in these deaths, reflecting preventable issues within the prison system.

"Human rights law, particularly Article 2 of the European Convention on Human Rights, mandates that the State protects the right to life.

"Thorough investigation and holding those responsible to account are essential for delivering justice to families and addressing critical issues within the prison system.”

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 at this time.