Criminal Justice Committee

Meeting date: Wednesday, September 20, 2023

Official Report 562KB pdf

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Deaths in Prison Custody

Under the next item of business, we are to review the progress that is being made on improving the response to deaths in prison custody. I welcome Gill Imery, who is the external chair overseeing implementation of the independent review of the response to deaths in prison custody.

I refer members to paper 2, which contains background information on Gill Imery’s work and a short summary setting out her views on the progress that is being made in response to the recommendations that are contained in the review report. I intend to run the evidence session for about 60 minutes, although we have a little bit of time in hand.

I invite Gill to make a short opening statement.

Good morning. Thank you, convener and all members of the committee, for your continuing interest in the work. As you know, the independent review was published back in November 2021, and I was appointed the external chair in April 2022 to oversee the progress in implementing its recommendations.

I highlight the contribution that families made to the work. We have been privileged to hear the experience of families who have lost a son, daughter, father, brother or husband. People have given their time generously to explain their experience, with the aim of preventing other families from going through a similar experience in the future and of helping prison officers and staff who also experience trauma from responding to deaths in prison.

Although their contribution is generous, it is difficult to keep families motivated and to give them confidence that change is happening when the pace of change and improvement is so slow. I published a progress report in December last year, which was more than a year since the original review was published. At that time, only three of the recommendations had been implemented, with another being partially complete. That partially complete recommendation has now been implemented, as has one more, so a total of five recommendations have been implemented. We are fast approaching two years since the review was published.

That is not to say that there is not a lot of work going on to try to make improvements. The Scottish Prison Service has reviewed its internal process, and the revised process started at the end of August this year. The key recommendation working group started a pilot exercise for the revised process as recently as Monday of this week.

As you will remember, the key recommendation was to have a new investigative process—an independent investigation into every death. In Scotland, we already have that. We have an independent process in the form of the Lord Advocate, who is the independent head of investigation for all sudden and suspicious deaths, and every death in prison requires a fatal accident inquiry.

Fatal accident inquiries were outwith the terms of reference of the original review, and they are outside my remit, too. Nonetheless, when I have been discussing how to improve the response to deaths in prison, it has been unavoidable that people have expressed concerns—with which I agree—that FAIs take far too long and that communication with families is poor.

My opinion is that the key recommendation—which would introduce yet another process, with more expense—would not be required if the speed of the current FAI process and the quality of communication with families were improved.

Thank you very much. Before I bring in other members, I will ask a general question about the expectation around timescales. There was one key recommendation and a number of other recommendations. Given that the recommendations apply across a system rather than across just one organisation, was there an expectation of how long might be considered reasonable for the recommendations to be implemented?

I am not aware of a particular timescale for implementation being imposed. I think that it was acknowledged that some of the recommendations are complex and could reasonably take some time to implement. However, the work started in 2019—since then, some of the families have been involved, and four years is a long time for people not to see recommendations implemented and improvements made.

Some of the recommendations are not really problematic, in my opinion. I said that in the December progress report, and you will see from the updates that I have provided that, when a draft of that progress report went out in November last year, at least two of the recommendations that I said could be quite easily implemented were almost immediately then subject to a governors and managers action notice: a mandatory instruction from the chief executive of the Scottish Prison Service to make something happen. That was great, but it raises the question of why the SPS did not do that before.

Absolutely. It is interesting that you say that, in your view, some of the recommendations should not have been particularly problematic to implement. Do you have a view on why progress was not made with those ones?

It is very difficult to tell where the reluctance comes from. From the various meetings and discussions that I have had directly with people who work in the Scottish Prison Service, I think that they do care about the subject. However, I have picked up the impression that they do not necessarily agree with the review. I think that those in the service feel that they are being unfairly criticised—they are working as hard as they can and doing as much as possible to prevent deaths in prison, but such tragedies occur, and they do their best to respond when those situations arise.

I get the sense that there is some resistance to the findings of the review and that the service does not wholly embrace the idea that there is a need for change.

I know that members will be looking more deeply into that aspect.

I am keen for our session to focus on progress on the recommendations, but it might be helpful to step back a bit first. As you said, given the size of the prison population in Scotland, it is, sadly, inevitable that there will be some deaths in the prison estate. It might be helpful if you were to outline a bit of context regarding the experience of mortality in prisons. What are the common underlying reasons, for example?

That is a really important element, and the availability and analysis of such data has, sadly, been lacking in Scotland. We were pleased to be able to produce, in August this year, the first of what I hope will be a number of reports. It sought to analyse deaths in prison between 2012 and 2022. That is a reasonable starting point for analysis in order to gain a deeper understanding of the factors that contribute to deaths in prison.

Between those years, there was a high level of prison deaths—350—just under half of which could be attributed to suicide or were drug-related deaths. More than half were attributed to natural causes such as illness and disease.

I caution against an acceptance of the number of people succumbing to disease and illness in prison. There needs to be greater scrutiny of the quality and availability of the healthcare that is available to people in the prison estate, and of the availability of resources, not least the capacity of the prison escort system to take people out of an establishment to access appointments and treatment. The initial report was not able to look at that.

Thank you very much. I will open up the session to members and hand over to Russell Findlay. Other members can indicate when they would like to come in.

First, I go back to the chronology of events. The Scottish Government commissioned the review in November 2021—

It was in 2019.

In 2019—sorry. The review then reported in November 2021.

That is correct.

It is now almost two years since then. The report contained 19 recommendations and six advisory points. To be clear, of those 25 in total, almost two years later, only five have been implemented.

That is correct, although the total is actually 26, if we count the key recommendation. There is a key recommendation, along with 19 recommendations and six advisory points, and only five are complete.

Five out of 26. How do you feel about that? Do you feel frustration or surprise? What are your thoughts?

Frustration would be a fair description; I do not think that I am surprised. Many of the recommendations are shared between the Scottish Prison Service and the national health service. The SPS has mentioned that there is a system and a hierarchy in which the chief executive can issue a governors and managers action notice, which is an instruction with which all governors must comply. I have already talked about being puzzled as to why that has not been employed more widely more quickly.

As for the NHS, there is a hard-working network in Scotland—the prison care network—which seeks to improve healthcare provision and achieve an element of consistency across the prison estate. However, that network does not have any power to make health boards implement the recommendations that are proposed. That is very frustrating, and it is difficult to see how the situation will improve.

10:15  

If I understood your opening statement correctly, the key recommendation of the report is that there should be an entirely new system of investigating deaths in custody.

That is correct.

However, if I understand correctly, you are of the view that that would not be necessary if the fatal accident inquiry system was fixed.

That is correct.

Concerns have been raised about that for almost a decade.

Where is the reluctance coming from? Is it the Scottish Government, the Crown Office or both? Is it coming from the blob? What is the problem with fixing the FAI process when it is clear that it is fundamentally flawed?

The only people who do not think that there is a problem with fatal accident inquiries is the Crown Office.

Will it take ministers to start insisting that the Crown accepts that there is a problem and does something about it?

Absolutely. The reticence and the difficulty there is that the Lord Advocate’s position is entirely independent. For that reason, the process was deliberately excluded from the terms of reference of the review and is, as I said, outside my remit. I am reflecting to you my observations and the feedback that I have had from families who are directly affected by the system.

However, there is nothing stopping any Government from saying to the Crown Office, notwithstanding the Lord Advocate’s independence and the Crown’s independence, that it could impose, create or fix a system without impinging on that independence.

Constitutionally, the Lord Advocate is entirely independent, so it would be very difficult for ministers, without a change in legislation, to impose mandatory timescales or something like that. However, that would help, given that there has been criticism for many years. Problems continue, so something needs to change.

Finally, there have been 350 deaths in custody since 2012, and 23 this year alone. You were due to meet the Cabinet Secretary for NHS Recovery, Health and Social Care and the Cabinet Secretary for Justice and Home Affairs in August, but the meeting was cancelled. You were then due to meet them in September, and that meeting was cancelled. A new meeting has been scheduled for 21 November. Do you know why those meetings were cancelled? That does not suggest to me that there is any great urgency to sit down and work out what needs to happen.

I have just been told that there was other pressing parliamentary business on both those occasions, but it is disappointing. Only half an hour would be needed to draw the cabinet secretaries’ attention to the matter. I was pleased that it was not just the cabinet secretary for justice but the cabinet secretary for health, because the two areas are inextricably linked on this topic.

There have now been 26 deaths this year, the most recent of which, sadly, was at the weekend. Twenty of those deaths have happened since May, so there has been an acceleration during this year.

Good morning. I am trying to establish the process of the group. You say that there has been reluctance to accept some of the findings of the report. How often, if at all, did all parties meet round the table to discuss issues, and why did you get the impression that there was resistance?

After I was appointed in April last year, I set up the death in prison custody action group, which is the overarching group with all the stakeholders and various partners present. Underneath that, the Government chairs the key recommendation working group, which again includes all the various partners around the table. I introduced the family reference group that I referred to in my opening remarks and a further working group, called the understanding and preventing deaths in prison working group, to look at the data.

The Prison Service is represented on all those groups, with the obvious exception of the family reference group, albeit that it has presented to the family reference group on a number of occasions about improvements that are under way. A family support booklet has been published and there will be a means for family members to contact a prison to express concern about a relative who is in prison. That is not yet established, although it is one of those things that do not seem to me to be hugely complicated or expensive.

The partners have all had ample opportunity to sit round a table together and every time there is an action group meeting, we seek updates from all parties, including the Prison Service and the NHS. We have a lot of detail on a spreadsheet that is available for public scrutiny.

On average, how many times a year do you have those meetings to get together and look at the data?

I think that the action group has now met four times.

Four times this year?

Four times since April 2022. There are also working groups underneath that, and the key recommendations working group. I would say that there have been at least a dozen meetings in those various iterations.

It seems that there are a lot of working groups. Is there a lack of communication? Is the structure too layered, so that people are off in their own silos doing stuff but nothing is actually being done? How do you feel about that as the chair? Has your position been undermined by the delays?

To answer your first point, I do not think that there is the excuse of any lack of opportunity to communicate effectively: there is constant communication to seek progress updates, populate spreadsheets and ask what is actually being done in relation to each of the recommendations.

I feel that it is difficult to continue having credibility in my position when the work is not having the impact that we would want it to have. When I came into the role, it seemed relatively straightforward because a huge amount of work had already been done—by others, not by me—to arrive at the 19 key recommendations and six advisory points, all of which had been accepted in principle by the Government. It should be a fairly straightforward task for me, as an external person, to oversee the implementation, but that has not proved to be the case, because everything is just very slow.

Could you have set a timeline or deadline for any of the implementation? Would it be within your remit to do that?

Yes, absolutely, and we did that exact thing. I could show you the timeline, although it looks more complicated than it really is. We arrived at quite a high-level action plan, which I am happy to share with members, and we tried to impose deadlines of zero to nine months, nine to 18 months, 18 to 24 months and so on. I reflected on that in preparation for this meeting. In the nine-to-18-month period of the timeline, there are only two things that I could put a tentative tick beside, and there are none in the 18-to-24-month period.

Did you get any robust explanation from the groups as to why implementation did not happen, or did it just not happen and there was no comeback on that?

There are lots of pressures on the system. There are lots of competing priorities—particularly in the NHS—and I have made positive comments about the national prison care network; people work very hard in that. That network sits under a Scottish health and custody network, and the chairs of both networks are very hard-working and enthusiastic people and have very small teams to support them. However, I have to say that, having tried very hard to get access to NHS chief executives and having ultimately got time at one of their private chief executive meetings, I have rarely experienced such a lack of interest in a piece of work in all of my 36 years of public service.

Good morning. What you said there is very concerning. With 350 deaths and numerous cases that members of the Parliament have taken on—such as the death of Alan Marshall, who was on remand in our care, and Katie Allan, a young woman who took her own life in Polmont—it is shocking to hear that.

All of the recommendations in the “Independent Review of the Response to Deaths in Prison Custody” seemed to be good ones, but what you told us—that very few of them have been pursued—is staggering.

There are two cases that I want to ask you about. I have had some involvement with Katie Allan’s case. I met her family and understand that, through freedom of information requests and meetings, they received a commitment from the then Cabinet Secretary for Justice on the removal of ligatures from the prison estate, but they are led to believe that cost is preventing that from happening. Do you have any comment to make to the committee about that?

That recommendation has now been implemented. There was a recommendation that suggested the introduction of privacy screens and the availability of ligature cutters, and in December last year that was partially complete: the screens had been made available, but ligature cutters had not. However, I have been told that ligature cutters have now also been procured and made available, so that recommendation is now fully implemented.

There is an issue with who goes in and checks to see that the improvement that has been reported is actually in place and that the systems are working. My role does not extend to that. Actually, my role will cease at the end of this year, anyway, so some consideration needs to be given to what the scrutiny mechanism should be, what the on-going monitoring process is and how people will be reassured that the improvements—some of which are very practical and straightforward things—have actually been achieved.

That is some good news.

The second question that I will ask relates to the recommendation for unfettered access to information following a death in police custody, which is critically important; it is a question that I put to the cabinet secretary at the time. Given what you said about the exclusion of the Crown—in the case of Alan Marshall, as you are aware, the Crown took a decision not to prosecute any of the 13 officers who held him down before he died in an attempt to get answers at the FAI, but it took seven years to get there—is it possible for that unfettered access to happen? Families want to go in and get information; they do not want to be told that they cannot go in or collect belongings or see what happened.

I thought that the recommendation was interesting, because, if there was a police investigation into a death, how could that commitment be made? However, the cabinet secretary made it. Is it possible to devise such a system? In this case, the family’s view was that there was a cover-up. They would have preferred to have found out exactly what had happened so that they would at least have had their own answers before the FAI. Would it be possible for that to happen without the Crown’s involvement?

10:30  

The short answer is no. The pilot that started, as I said, as recently as this week is probing exactly those complex issues about how information can be shared without compromising a future process. A fatal accident inquiry’s purpose is to establish a cause of death, not to attribute blame to any party. If that process were to occur more swiftly, with more effective and more sympathetic communication with families, that would achieve the aim of the key recommendation, and it would allow access to information.

If such a thing could be done—the timescale could be two years following the death, which I do not think is unreasonable—and families felt that they would get answers within 24 months, they might feel less concerned about getting immediate access to information. Do you agree?

I completely agree. Family members have told me that they get the feeling that they are somehow the enemy or a risk, or that there is anxiety and fear about telling families what might have happened in case someone is blamed later on. I have been quite humbled to listen to how concerned family members are not just about their own family and other families in future but about prison officers and other staff. They know how traumatic such situations are, and they also feel sympathy for prison officers and other staff who have to deal with them.

Thank you very much.

Good morning. I would like to follow on from where Pauline McNeill left off and ask about the interaction between the proposed investigation that would take place and a fatal accident inquiry. Has any thought been given to whether it is possible to have the type of comprehensive independent investigation that has been proposed—I completely understand the rationale for it—while a fatal accident inquiry is pending? We often rub up against the necessity of leaving things until the statutory process that, as you quite correctly say, has to take place in relation to a death in custody has taken place. Has there been any interaction between the group and the Crown on the sequencing of all this?

Yes. The Crown has been represented at all the groups that I have spoken about—including, specifically, the working group on the implementation of the key recommendation—and it has been closely involved in the revised process that is being piloted. The pilot, which is being led by His Majesty’s Inspectorate of Prisons for Scotland, will be a desktop exercise that will look into cases that are complete, in the sense that a fatal accident inquiry has already taken place. That set of circumstances will be used to test the new process.

The Scottish Prison Service has its internal review process, which is the death in prison learning, audit and review, or DIPLAR; the NHS has its internal process, which is the significant adverse event review; and the police investigation reports under the instruction of the Lord Advocate. The key recommendation is to introduce a fourth investigative process or review, and it implies that a new body should carry that out, but it would be quite unrealistic to achieve that in the current climate.

I listened to what you said in your responses to Pauline McNeill in particular about the perspective of families. Quite understandably, families want early information. A period of 24 months seems to me to be an awful long time to wait for information.

It is a lot shorter than the period for which they have to wait at the moment.

But it still seems like an awful long time. What are the timescales for the scrutiny processes that are undertaken by the Scottish Prison Service and the national health service? Are those processes swifter than an FAI?

Yes. They are introduced much more quickly but, until the review and the push for its recommendations to be implemented, the families sometimes did not even know that a DIPLAR was taking place and they were not involved in the process in any way. The revised process that was brought in last month puts an emphasis on family involvement and families having a point of contact—a liaison person—so that they have an opportunity to ask questions about the death of their loved one.

As you properly said, the arrangements for a fatal accident inquiry are entirely matters for the Crown, as FAIs are carried out independently of the Scottish ministers. Notwithstanding the issues in relation to those arrangements, I am interested in whether a pragmatic adaptation of the processes that are undertaken by the SPS and the NHS could be carried out timeously so that families would get early, prompt, thorough and courteous engagement on the circumstances of the death of a loved one.

I agree that the Scottish Prison Service’s process and the NHS’s process hold the potential to meet the needs of families for more prompt answers and more sympathetic and respectful communication.

I want to move on to the composition of the deaths in prison custody action group. Do you think that everyone is rowing in the same direction?

I think that we have had good representation from the various agencies on that action group.

That is not quite what I am asking. Is everyone on board?

There is a reticence on the part of the Prison Service about genuinely embracing the review, welcoming it and recognising that something really does need to change. At times, I have felt slightly humoured; at other times, I have felt slightly patronised, with the suggestion being that I do not understand how difficult it is. It is absolutely a challenging environment in which to work, and the system is under pressure.

However, I keep returning to what I feel is one of the most compelling parts of my duty, which is to the families of people who have died. It is very hard to sit in a room with relatives who are bereaved and ask them to give their time and repeat their experiences over and over again without getting the result that they are looking for, which is improvement for other families and, indeed, answers in relation to their own situations.

Therefore, I have felt that, at times, some people have not been pulling in the same direction. I also think that the Crown Office and Procurator Fiscal Service does not think that there is a problem with the fatal accident process. When I put out the draft of the progress report in November last year, the Crown Office immediately came back and asked me to remove the reference to fatal accident inquiries on the ground that it was not in my remit, so I had no business commenting on it. I refused to remove it because, as I am doing with you today, I am reflecting the feedback that I have had and the observations that I have made as an independent person, which have some validity.

Thank you for that. I was struck by your remark that you were cautious about relying on the data about, to summarise what you said, 50 per cent of deaths in custody arising from what one might describe as illness or natural causes. I understand your point about being cautious about that data, because it opens up a discussion about the extent to which being incarcerated exacerbates the decline in individuals’ health and, therefore, what society must do to address that point. Am I correctly understanding the substance behind the point that you make in that observation?

Absolutely. The lack of scrutiny of the availability and quality of healthcare across the prison estate is a national disgrace. Little scrutiny is applied to what healthcare is applied to people, some of whom already have complex needs. In the care of the state, people should access better healthcare than they ever would in the community because they are literally a captive audience for health interventions, but that does not appear to happen.

Has that perspective been the subject of discussion at the custody action group, given that you have the Prison Service, the national health service and Healthcare Improvement Scotland, among others, around that table?

It has been discussed. The national prison care network is motivated to try to achieve consistency across the prison estate. However, I feel that NHS boards do not necessarily wholly embrace the priority that should be given to members of the community from every health board who could find themselves in prison. It is not just a matter for the health boards that have prisons physically located in their geographic areas; it is for every health board. However, as I have mentioned, no matter how hard working and well-meaning it is, the network does not have a mandate to make health boards take on the responsibility for healthcare provision in prisons.

You have already answered a few of the questions that I wanted to ask.

You said that five of the recommendations had been implemented. In written communication with the committee, you said that one of the recommendations

“could be said to be addressed”.

Are five of them now fully implemented or is one of them still being addressed?

Five of them are now complete. It may be that I have used a different word.

That is fine. Could you tell me which recommendations have been completed?

Absolutely.

Even if you could just tell me what numbers they are—I have the numbers here—that would be fine.

I can absolutely do that, because I anticipated that question. However, where I have put that information in my notes is a different matter.

I can come back to that.

10:45  

No—it is absolutely fine. Recommendation 1.4, which is on next of kin, has been implemented. That was one of the three that were in the progress report last year. I discussed recommendation 2.2 with Ms McNeill; it is about the provision of ligature cutters and screens. That has been implemented, as has recommendation 3.1, which is about the governor in charge being in contact with families. Recommendation 3.3 is on the family support booklet, which, as I said, has been implemented. Recommendation 5.4, which is that the Prison Service should conduct the DIPLAR internal review process for all deaths, has also been implemented. Those five recommendations have been implemented.

I was going to ask you about an action plan for the rest of the recommendations. You have already mentioned that, but do the Scottish Prison Service and the NHS have an action plan that gives a timescale for when they think that each of those recommendations will be implemented? Is there someone who is accountable for making sure that that is actioned?

We have pushed hard to get updates. As I have explained, we have sought updates at every stage. When another action group meeting is pending, we seek an update in order to be able to populate a spreadsheet and make it publicly available to show the various activities that are under way. There are timescales, but they slip. You can see from the briefings that I provided in June this year and at the start of this month that it was anticipated that certain things would be available, but that did not happen until much later.

Responsible people have now been identified in every health board for healthcare in prison. We have yet to see that manifest in change, but I hope that that will help. The network that I mentioned is at an advanced stage of producing a toolkit to achieve consistency of response to deaths in prison across the prison estate. Health boards are obviously pivotal to making that a reality across the country.

We keep pushing for timescales, but they tend to slip.

Is somebody accountable for those areas in the SPS and the NHS? Is there somebody to whom you could write to ask how they are progressing with, say, recommendation 3.2?

There are named people, but there are limitations to their mandate. That is what I explained in relation to the national prison network. There are named people who are working hard in that network, but they cannot make the chief executives implement the recommendations.

After the progress report was published on 14 December last year, the then cabinet secretaries for health and justice wrote to the chief executive of the prison service and all the NHS chief executives on 18 December and told them to prioritise that work. Unfortunately, that has not quite had the effect that was hoped for.

I also wanted to ask about the cancelled meetings, which Russell Findlay mentioned. Another thing that I noted in your submission was that you are due to finish in your role in November. How many meetings have you had with the cabinet secretaries since you took up your post?

One.

Was that with both cabinet secretaries or just one?

With both, in November last year.

Have you had any written communication with them since then?

No—not apart from the progress report in December.

What will happen with your post in November? Will you be kept on, or will the post end? Have you had any communication on that?

No. I have certainly agreed to stay until the end of the year, so I will have time to produce another report. I would call it a final report, but it will be final only in the sense that it will be the last report from me, not in the sense—I am pretty sure—that all the recommendations will be complete.

The rationale for bringing in someone external was to provide some impetus for the implementation of the recommendations. I think that it is difficult to justify keeping someone on in that capacity beyond two years after a report has been published.

What do you think is going to happen after you leave? As you said, progress in the past two years has been slow, and you are trying to keep pushing it on.

My biggest concern is for those family representatives who have given their time and gone through the triggering process of not just telling their own stories but listening to other families’ experiences. They might feel that I have let them down, because I will not be able to look them in the eye and say, “I came in to do this, and I’ve done it.”

The responsibility then falls to the statutory bodies, most obviously HM Inspectorate of Prisons for Scotland. Again, however, there is limited resource there to drive the scrutiny. I have spoken to other groups such as the National Preventive Mechanism, which is a network of scrutiny bodies for people deprived of their liberty, to raise the question of whether they feel that they have some capacity to monitor and keep some pressure on to get the recommendations implemented.

Healthcare Improvement Scotland should, I think, look much more regularly at the quality and availability of healthcare in prisons. HIS participates in the joint inspections that are led by HM Inspectorate of Prisons, but those involve only two or three establishments a year.

To go back to what you said, nobody has spoken to you about extending your term, and you do not know whether anybody else is coming in. What do you think needs to happen to increase the pace of implementation?

There absolutely needs to be continued scrutiny, and somebody needs to be driving the activity. However, having been in the role since April last year, I am not sure that bringing in another external chair will make any difference.

Good morning. I will follow on from where Sharon Dowey left off. I think that we can all hear today the passion in your voice for this piece of work, which is probably prompted by your time coming to an end, with the process not being as complete as you would like—that is probably an understatement.

In many ways—I am putting words in your mouth here; this might be a bit extreme—it almost feels as though your contacting the committee and coming back to committee today is a wee bit of a cry for help in relation to this piece of work. What do you think that the committee can do to help to progress the recommendations that you have made? You have made your case very powerfully today.

Thank you. I think that if you had the time to invite some of the people who are responsible for delivering on the recommendations to come and speak to you, that would be helpful, as you could have a direct exchange about what it is that is making implementation so difficult to achieve.

Many of the recommendations have not been implemented yet, but that is not insurmountable—in total, there are 20 recommendations and six advisory points that, as a country, we should be capable of achieving for people who are literally without power, imprisoned in our country’s prison estate.

You have certainly given us a lot of food for thought when we come to discuss what we have heard today.

There are two wee points that I want to ask about—well, they are wee in terms of the evidence session, but they are not small by any means. During the pandemic, there was an increase in the number of deaths in prison. John Swinney asked about that. Did you ever get any information, or was information ever released as part of the work that you did, about what caused those deaths? Did they relate to the pandemic—either the virus or the restrictions? Did you ever get a feel for that?

No, I did not. The number of deaths peaked at 53 in, I think, 2021, so there was a noticeable increase. However, I have not seen any further analytical work to establish what that was about. As I said, the report that was published in August should be just the starting point. More analysis of those deaths should be carried out by comparing the trends in prison with trends among the general population, with a view to trying to understand the factors so that interventions can be made to prevent deaths in the future.

On a similar point, you mentioned that there had been an increase in the number of deaths over the summer, since May. Is there any analysis of why that has happened?

No, there is not, but you will have heard about pressures in the system and increases in the prison population, so it will be interesting to see what the factors are. It is concerning that the level of deaths is increasing over time.

Thank you very much for your evidence.

I have two very quick questions. First, the Scottish Government will be watching this evidence session and will have read your submissions. If it were possible for your tenure to be extended for, say, 12 months, would you consider staying on, or are you completely scunnered and have you had enough? Is staying on an option?

I would be willing to continue to try to help, if I could, but I would temper that enthusiasm by noting the reality of how much I have managed to achieve so far. I would not say no.

I will return to the fundamentals. The fatal accident inquiry system is central to investigating deaths in custody, but you and others involved in the review were told that you could not even look at that system. You, quite rightly, said that that was ridiculous and you did look at it. Uniquely, the Crown Office seems to think that fatal accident inquiries are fine, despite the abundance of evidence of all the misery and pain that they cause, in addition to that caused by the deaths that have occurred.

Given the reluctance or the inability to fix the FAI system, we are left with one key recommendation—one that you would rather not be enacted but that is surely the direction of travel and that, at some point, might be enacted. Has any work been done on, or have there been any discussions about, the cost of setting up a new organisation that would deal specifically with deaths in custody?

Not to my knowledge. When looking at how the organisation might coexist with the three existing processes, I was very aware of how much more pressure would be put on the public purse and of the inherent difficulties of asking families, prison officers and other staff to comply with potentially four processes, not just three.

Thank you very much.

11:00  

I will follow up on the point that Russell Findlay just advanced in relation to the adequacy of the immediate SPS review—I will call it the immediate review—and the immediate health service review of a death in custody. I understand that by statute there is a requirement for a fatal accident inquiry to be undertaken when somebody dies in legal custody. From the perspective of addressing the needs of the families, which you have powerfully put to us this morning, could those processes—I am not sure whether you are familiar with the content of those processes—provide sufficient information in advance of a fatal accident inquiry to, in essence, avoid the need for a fourth process to be added to the system?

They could; the revised process that I mentioned started at the end of August this year. An instruction was issued for all governors in all establishments in Scotland to introduce the new revised DIPLAR process, which prioritises liaison with families. I understand that that will be evaluated and reviewed in February next year. There will have been the opportunity to try it in real time and, obviously, it would be a great improvement if that delivered what it is hoped it will deliver.

On the NHS side, the network is at an advanced stage of providing national guidance—it is being called a toolkit—on how a serious adverse event review should be carried out in response to a death in prison. The issue there is to ensure that all NHS boards implement the toolkit. I hope that the fact that there is now an executive lead in every health board for prison care will ensure that the toolkit is implemented.

Those two parts should improve and enhance the existing internal processes of review for the prison service and the NHS. I certainly would not say that that would negate the need for improvement in the FAI process; that improvement is also absolutely required.

Does the improvement of those two processes provide you with sufficient confidence that, in theory, they would substantively address some of the early issues that families may have in the absence of a fatal accident inquiry being able to be undertaken in a timeous fashion?

Yes; in theory, those improvements give me confidence. All that families want is a few answers to perfectly reasonable questions about what happened to their loved one in prison—that is all that they want.

I understand; thank you very much.

We are just about up to time. I will stay with the key recommendation on an additional independent review process. I note in the review report the context around the needs of families, which we have discussed robustly this morning. I noticed in the review that there was reference to the fact that that change—creating another independent process—

“would bring Scotland into line with practice in other jurisdictions including England, Wales, and Northern Ireland.”

I know that it is not just a case of taking a model from somewhere else and slotting it into our policies and processes, but I wonder whether any work was done to look at that practice and whether there was a feeling that there was good learning from that that could realistically form part of a new process in Scotland—bearing in mind what we have discussed about the other option of, potentially, looking at the existing processes and making some changes to them?

The Government has engaged with relevant people in other jurisdictions to understand their approaches and to try and take any good practice and learning from elsewhere to bring to bear on the review of processes here. So, yes, absolutely, there is an interest in and efforts have been made to look at approaches elsewhere. Obviously, the big difference in Scotland is the role of the Lord Advocate.

Indeed. I have one final question about the feelings of families, as things stand, in respect of the slow pace of implementation of the recommendations. You clearly have close contact with families. What do they feel about where we are now?

They are disappointed and frustrated by the lack of real change. Some of the families have been involved since the review was commissioned in 2019, so it has been nearly four years and not much has changed.

They have been remarkably resilient in continuing to attend the various meetings. Representatives from the families attend every one of the groups that I have mentioned. That is because when I started, there was so little trust on the part of the families in what they were being told that they wanted to have someone in the room at every meeting of every group—and they have that.

They are encouraged, to some extent, that the committee is interested and wants to hear more about the review, although they would rather have answers to the questions on each of their individual cases. More generally, they want to see improvements for other families in future and to prevent future deaths.

I will bring the session to a close. I thank you very much for attending. There will be a short suspension to allow us to have a comfort break and to allow Gill Imery to leave.

Thank you, convener; and thank you, everyone, for your interest.

11:08 Meeting suspended.  

11:15 On resuming—