Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, June 22, 2022

Official Report 1256KB pdf

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Deaths in Custody

The next item of business is a statement by the Cabinet Secretary for Justice and Veterans, Keith Brown, on deaths in custody. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:53  

In November 2019, my predecessor commissioned an independent review into the response to deaths in prison custody, in recognition of the need for increased transparency and better engagement with families following a death in custody. The review report was published on 30 November last year. On that date, I made a statement accepting in principle all the recommendations that were made by the review. I also made a commitment to provide Parliament with an update on progress made against the recommendations by summer 2022, and I will now honour that commitment.

I wish to begin by refreshing members’ memories of the purpose of the review. Its primary aim was to make recommendations on areas in which improvements can be made in the immediate response to deaths in prison custody by the Scottish Prison Service and the national health service, including deaths of prisoners while in NHS care. The review did that and, most importantly, it highlighted ways in which the response to, and experiences of, families could both be made more consistent and improved, so as to provide prompt answers, transparency and compassion.

The review recommended that two pillars of trauma-informed practice should underpin every interaction with families, at all points along the justice journey, including when a family experiences bereavement through the death of a loved one in SPS care. The two pillars are choice and control. It is my absolute commitment that choice and control, as well as compassion and transparency, will be woven into our justice system so as to better deliver for families.

At the beginning of this year, I held a round table with key agencies and family members who had provided expert views and lived experience to the review, to map what needed to be done to deliver on the recommendations and to gain agreement from all to make the necessary changes at pace. It was agreed by all that there were real benefits to the work being externally led.

In April, I appointed Gillian Imery, formerly Her Majesty’s chief inspector of constabulary, as an external chair to provide independent oversight and leadership for the implementation of all the review’s recommendations. Ms Imery has already met with all relevant stakeholders, and has established a deaths in prison custody action group to oversee and drive forward the programme of work that is necessary to make the suggested improvements to operational practices and to meet the recommendations. The group met for the first time yesterday. Agencies have already indicated early changes to the way that they respond to families and handle deaths in custody internally, with a commitment to making longer-term improvements over the coming few months.

I also met with Ms Imery yesterday, in the first of a series of regular progress updates with her, and I am assured that improvements are being implemented by all agencies. The external chair has committed to publishing a written update in November this year. That will provide on-going transparency to all the important work that is being progressed across this policy area.

I move on to improvements that are being made by agencies. The SPS is piloting an electronic form that allows family members to flag any serious concerns that they might have about the health and wellbeing of a loved one in prison. The form and its submission process have been user tested by third sector partners and prison monitor co-ordinators, which has identified that mental health concerns and suicidality are readily flagged, but physical health concerns are not. The form has therefore undergone additional refinement and will be further tested for efficacy.

The SPS is also seeking to improve early access for prisoners to emergency bells, and for staff to equipment such as ligature cutters and privacy screens. Those practices are being reviewed, and in some instances they have already been actioned. Privacy screens are now in place in the majority of prisons, with the remainder in train to be put in place. Active consideration is being given to the best model for ensuring ready access to ligature cutters, and I am confident that that will be resolved in the very near future.

The SPS is in agreement with the review’s recommendation that prison governors should be the next point of contact with families, after the police, as soon as possible after a death. It has already implemented that as best practice in a number of establishments.

In relation to NHS improvements, the NHS has taken the lead on developing a suite of training packages for NHS and SPS staff, including ones that equip staff with coping skills for responding to deaths in custody. They have also developed a process whereby prison nurses can provide confirmation of death, thus reducing the pressure on the Scottish Ambulance Service. That process has already been cascaded to all health boards, and further training to prison nurses will follow as soon as possible. Linking to that, within the next two months, the NHS will have developed a pathway, agreed with the SPS, that outlines the responsibilities of healthcare and operational staff following a death in custody.

As the head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate has responsibility for the investigation of all sudden, suspicious and unexplained deaths. Any decision of the Lord Advocate in that capacity is taken independently of any other person. In my previous statement to Parliament, I explained that the key recommendation would complement the independent investigation by the Crown Office and Procurator Fiscal Service into the circumstances of the death, the information provided to families by the Crown Office in terms of the family liaison charter, and the subsequent fatal accident inquiry, which is presided over by the judiciary. It was made clear that the recommendation around the independent body does not, and should not, replace any of the current inquiry processes. The Lord Advocate agreed in principle with the recommendation, and the Crown Office is providing a contribution as a key stakeholder.

I turn to the key recommendation, which is that an independent investigation should be undertaken into each death in prison custody and carried out by a body that is wholly independent of the Scottish ministers, the SPS, the private prison operators and the NHS.

My officials have constituted a working group of key agencies, the remit of which is to design a gold standard investigative process to review each death, identify lessons to be learned, and provide prompt answers and a single point of contact to families. The Scottish Government and the Crown Office are working closely and collaboratively to ensure that the new approach functions seamlessly in tandem with, and parallel to, existing investigative processes that need to take place when a death in custody occurs. The group is furthermore considering options as to the most suitable independent public body to take on the new approach in the current fiscal climate.

In April, my officials held a round table with the ombudsmen and senior investigators of England and Wales, Northern Ireland and the Republic of Ireland, to hear from them how deaths in custody are investigated in their jurisdictions. The implementation of the key recommendation will bring us in line with those jurisdictions, and there are lessons to learn from them in relation to good practice and key areas to be improved on when we create our own approach. A key takeaway from that meeting was the need for our approach not only to make recommendations but to have the statutory power to enforce them.

I want to ensure that changes that are made to processes when someone dies in custody are meaningful, that they meet families’ expectations, and that they radically improve the response to families when the death of a loved one occurs in prison. However, it takes time to effect meaningful change and, in order for changes to have teeth, they might require to be made in statute, which is dependent on parliamentary timetabling.

It is imperative that, as we move at pace to improve operational processes, we do not lose sight of the fact that, at the heart, we are striving to improve our response to bereaved families. I want to be clear that I regard families as our most important stakeholders, as key consultants as we progress with implementing the recommendations and as co-designers of the new investigative process.

I am adamant that we will consistently deliver a trauma-informed and compassionate service only when we afford families the twin loci of choice and control. I wish to reiterate my commitment to giving that choice and control to families at each and every touch point with public agencies—Police Scotland, the SPS, the NHS, the Scottish Government and the Crown Office—when a family experiences loss through a death in prison custody.

The cabinet secretary will now take questions on the issues that were raised in his statement. I intend to allow around 20 minutes for questions, after which we will move to the next item of business. It would be helpful if all members who wish to ask a question pressed their request-to-speak button now.

I thank the cabinet secretary for advance sight of today’s statement, and I thank Gillian Imery for the work that she has done on the issue. We as a Parliament should send our deepest condolences to the many families who have been affected by a death in custody in Scotland.

The statistics are truly shocking. Scotland has one of the highest rates of deaths in prison in Europe. This past year, 54 people sadly lost their lives in custody, which was a 60 per cent increase on the previous year. Behind every single number is a life lost, such as Calum Inglis, Steven Sweeney and Reese Fairgrieve, and who can forget the tragedies of Katie Allan and William Lindsay’s deaths in Polmont? All of those deaths point to systemic failures around custody in Scotland.

I welcome the Government’s commitment to implement the recommendations, especially that of an independent inquiry into each and every death in custody. I have three specific questions for the cabinet secretary on his statement. First, given that deaths in custody are already subject to fatal accident inquiries, it is vital that there should be no delay in those taking place as a result of any new potential investigative processes. Will that be the case or not?

Secondly, given that, shockingly, FAIs take three or four years just to commence, and given that nine in 10 FAIs make no recommendations for improvements when they conclude, does the cabinet secretary back families’ calls for much swifter commencement and resolution of FAIs, and more importantly, for them to result in meaningful change thereafter?

Finally, what steps will the cabinet secretary take to ensure that prison officers and families of the deceased are not retraumatised by the entire process of having to give evidence potentially multiple times to different inquiries?

First, in relation to whether the FAI process might result in a delay—or, vice versa, whether the new process might result in a delay in FAIs—we have involved the Crown Office in all the discussions that we have had so far to try to avoid that situation. The Crown Office is a stakeholder in the various working groups that I have mentioned. It is about trying to make those two processes complement each other rather than get in front of each other. We are committed to doing that, and we are not doing it on our own but with the Crown Office.

The member also mentioned the need for swifter FAIs. Of course, that is for the Crown Office to answer, but it is committed to that and we have seen real progress on the matter in recent years, not least because of additional resources, particularly in relation to staff, which have allowed the Crown Office to further increase the pace at which FAIs are done. We are all aware of the one or two examples that have taken a very long time—I accept that point—but, generally, the picture is improving. It is for the Crown Office to take it forward.

On meaningful recommendations at the end of FAIs, again I cannot supplant the role of the Lord Advocate in that. However, I know that she is also seized of the need to make sure that meaningful actions come out of FAIs.

The member’s final point was about the need to try to avoid prison officers and others being retraumatised. That is a good point, and I made the same point when the report first came out. We have to consider the impact on prison officers, because they can be traumatised just as much as anybody else by witnessing a death in custody. We are seized of the need to work on that. We are aware of the danger of the different processes contributing to retraumatising, but we are trying to make sure that that issue is addressed as we work through the various workstreams that I have mentioned.

Scotland must have the highest standards of welfare and safety of persons who are detained in prisons and other facilities. As has been said, Scotland has an unacceptably high number of deaths in custody.

I welcome some of the commitments to improve the system, particularly by allowing families to flag up any serious concerns that they have about their family members’ physical health. It was mentioned in the statement that mental health and suicidality are already flagged up, but I know of cases in which families have raised concerns about family members who are in prison and are in serious distress, and those concerns have not always been acted on with the right level of urgency. I want to be clear that that will be included when we look at setting up new systems. I also seek the cabinet secretary’s assurance that families will be able to properly record welfare concerns.

I also want to ask about the pillars referred to in the statement. I would have thought that timely answers and timely information about the circumstances of a death in custody would have been an important principle to guide us in a new system. The independent report recommended “unfettered access” to information in the event of a death in custody, and I believe that the Government is committed to that. However, I will continue to ask what that will amount to. Will it ensure that families will be given access to information as the information unfolds? I am sure that the cabinet secretary will agree that one of the main purposes of changing the system is to give families full confidence in any new process that will correct the mistakes of the past. Families feel that information has been kept from them and that it takes far too long to get answers about deaths in custody.

I think that Pauline McNeill’s first point was about whether general health concerns rather than suicidality or mental health concerns are properly recorded. I tried to make the point that a new electronic process has been developed and, during the course of its development, it was found that it was not doing exactly what Pauline McNeill has asked for. That process is now being changed to make sure that general health concerns are also recorded.

On whether families can have full confidence in the process, that is what we are aiming to achieve, but we have something more basic to achieve before we get to that, which is to give families the courtesy of basic information whenever it is possible to do so. I am the first to concede that that has not always happened in the past. That is our intention.

On time limits, which goes back to Jamie Greene’s questions, it will be about trying to make sure that the two processes that might apply are dovetailed as far as possible. Our aim is to make sure that, especially in straightforward cases, the information that is available can be passed on to the family as quickly as possible. That is the intention. I also think that victims should have similar notification, and that has been addressed by some of the recommendations that the SPS has already taken forward by publicising on its website the fact that somebody has died in prison. Those are our aims and what we are trying to do.

We move to questions from back benchers. I point out that we are already over the amount of time that was allotted to the two front benchers for their questions. I hope that that will not impact on back benchers.

As the cabinet secretary and other members have said, it goes without saying that one life lost in custody is one life too many. Therefore, I ask the cabinet secretary to reaffirm that it is the Scottish Government’s intention to treat this serious issue with all the sensitivity and priority that it deserves.

That is exactly our intention. It has to be remembered that our prisons deal with some of the most vulnerable people in society, and there is no getting round the fact that, for most people, being put in prison is a traumatic thing to happen.

I am absolutely committed to making improvements to the response to, and the experience of families who are impacted by, a death in custody. It is a family member, not the family, who has been sent to prison. As Pauline McNeill said, we must provide them with prompt answers and ensure that a compassionate approach is taken. That is why we have commissioned independent reviews into the provision of mental health services to young people in Polmont prison and into responses to deaths in custody. As I have mentioned, I have appointed Gillian Imery as the external chair to oversee the work on the implementation of the recommendations.

Drugs kill far too many in society and in our prisons. The cabinet secretary previously said that he hoped to achieve drug-free prisons but, just this week, a senior boss at HMP Barlinnie said that drugs can never be eradicated inside. Indeed, prison officers tell me that they are often threatened by organised criminals to get them to smuggle drugs. Under the new process, what support will be given to prison officers who find themselves involved in an investigation involving a drug death?

I recently discussed that very issue with the governor of Saughton prison. I know that members of the Criminal Justice Committee have visited HMP Edinburgh, which has well-developed practices for supporting prison officers. However, that prison does not yet have the kind of body scanner that Barlinnie prison has, which, I am told, has been extremely effective. Through the use of such equipment, along with the photocopying of documents that is now being done in many of our prisons, real progress is starting to be made in reducing the incidence of drugs in prison.

Russell Findlay quoted someone at Barlinnie saying that it is impossible to eradicate drugs in prison. Regardless of whether that is the case, in that person’s view, we must aim to eradicate drugs from our prisons. We must continue to train prison officers and to make sure that they have the support that they need. Often, the issue butts up against serious organised crime and people who are convicted for such offences, but I am content that, by pursuing the new technological opportunities that we have, we can make further progress in eradicating drugs from our prisons.

What steps are being taken to improve the transparency of data on deaths in custody?

We have undertaken a number of initiatives in relation to data. I have mentioned, in relation to advising people of such deaths, that information will be put up on the Scottish Prison Service website. We must make sure that that information is collated and that the data is used. That will be looked at by the working group as part of the work that is being done by Gill Imery, so I expect to be able to give more information on how we can improve data in a future statement.

The Sheku Bayoh inquiry, which, of course, relates to a police-related death, started taking evidence seven years after Sheku Bayoh’s death. It is currently in the first of four stages, and I understand that it may take four years to report. How will the cabinet secretary ensure that the recommendations of that substantial inquiry are implemented?

We always listen very carefully to any recommendations that are made by a public inquiry. To be fair, I think that all Governments do that.

The member mentioned the length of time that it has taken for the Sheku Bayoh inquiry to get to this stage. I understand that concern. Other concerns have been expressed to me about the fact that people who are appointed to chair inquiries can sometimes be unwell, which causes delays.

As the member knows, such matters are not an issue for me. Public inquiries are independent, and we want to respect that independence.

The first death in custody since 2019 at Cornton Vale prison, in my constituency, is currently under investigation. I extend my condolences to the person’s family and friends. What steps are being taken to minimise the risk of deaths in custody at Cornton Vale? How will the on-going rebuilding of the prison assist with that?

We have set out bold and progressive plans for the new female custodial estate in Scotland. The plans include the smaller national prison in Stirling that the member mentioned, which will be built on the current Cornton Vale site and will accommodate around 80 women with the most complex needs, together with an assessment centre that is focused on identifying the needs of all women who come into prison custody.

Alongside the new facilities, we will adopt a new approach to working with women in prison. The SPS, in partnership with multidisciplinary teams, will work to create a recovery-based ethos that responds to the specific needs of women in custody. All aspects of the approach will be gender specific and trauma informed.

The SPS strategy for women is aligned with the national trauma training framework.

I thank the cabinet secretary for early sight of his statement, and I welcome the recommendation that an independent investigation should be undertaken into each death in custody.

Will the Government set a maximum threshold for how long families might wait for such a review to begin? What guarantee can the justice secretary give families, who often find it incredibly difficult to navigate legal proceedings of that type, that they will get the support that they need to be fully engaged, including universal access to legal aid?

I am sorry, but I perhaps missed the start of the question. I am trying to understand which inquiry Liam McArthur is talking about. If his question related to the work that is on-going, we expect to report back to the Parliament in November, as I said. No inquiry process is related to that—unless the member was asking how quickly the matter can be processed when someone makes an inquiry. I am sorry that I did not catch the start of what he said.

If Liam McArthur’s question related to support for families when there is a public inquiry, I can tell him that we look at such issues. For example, as the member knows, because he has written to me on this subject, assistance is provided currently in a public inquiry. We have a role in funding and facilitating public inquiries, to ensure that they have the most comprehensive possible information and witness participation. We will continue to do that. In relation to this process, we want the maximum possible access to be given to families who have suffered as a result a death in custody. That might be consistent with some of the things that I said previously.

If I misunderstood the member’s question, I will be happy to get back to him.

I call Ruth Maguire, who is joining us remotely.

[Inaudible.]—the cabinet secretary’s comments about families and accessibility and how people can—

Sorry, Ms Maguire. The sound cut out at the beginning of your question. Could you start again, please?

Thank you, Presiding Officer.

I appreciated hearing the cabinet secretary’s comments on families, the importance of compassion and the steps that are being taken to increase accessibility.

Will the cabinet secretary update us on steps that are being taken to provide mental health support to people in prison, specifically with regard to suicide prevention?

The safe treatment of mental health issues for all people in custody is a priority for our prisons, and the Prison Service takes the issue very seriously. We know that people in custody present with higher levels of risk and vulnerability than the general population as a whole, for reasons that I have mentioned—they often have complex mental health needs.

A cross-portfolio ministerial working group has been formed to identify issues that the justice system currently faces in relation to mental health and to consider ways to bring forward urgent and creative solutions.

The SPS has reissued revised “Talk to Me” guidance to all staff, to make clearer the circumstances in which a risk assessment and/or healthcare assessment should be carried out. The guidance remains in place and was in place throughout the pandemic.

I call Maggie Chapman, who is joining us remotely.

I thank the cabinet secretary for prior sight of his statement, and I welcome his intention to implement the recommendations of the independent review.

One purpose of the new process of independent investigation is to improve the experience of the families of people who die in custody. That is vital. Another purpose must be to learn lessons about how to prevent future deaths in custody. Can the cabinet secretary say how any learning from the new process will make its way into appropriate changes in policy, practice or operations, to prevent future deaths? Will he also say what we can do to ensure that independent investigations and FAIs are held in a timely manner?

I assure the member that the people concerned—Gill Imery and HM Inspectorate of Prisons for Scotland—are well versed in the current situation in prisons and are well seized of those issues, but there is more work to be done on mental health issues, as I have just mentioned.

The member also mentioned the role of families. When I met the families, I was impressed with the knowledge that they had—first-hand lived experience of sometimes very traumatic events. We want to make sure that the lived experience of those families informs the new ways in which we can try to prevent further deaths in prison.

We know that a preventative and supportive approach, and not a punitive one, is the best way to ensure that people in Scotland do not come to harm while in custody. Does the cabinet secretary agree that people in custody must have full access to mental health care and support, and will he outline how the Scottish Government is achieving that objective?

I imagine that there is unanimity in the chamber that those who are in prison should have the same level of care, whether for mental health or physical wellbeing, as those who are not in custody. We made that clear in our mental health transition and recovery plan, which was published in October 2020. I have already mentioned the ministerial working group.

In addition, the SPS is working in partnership with mental health experts to co-produce a revised mental health strategy for those in custody, which will be informed by a suite of health needs assessments on prisons, including one on mental health, which will be published by the Government later this year. The SPS is also working in partnership with NHS prison healthcare colleagues to ensure that due consideration is given to pre-liberation planning that will support transfer of care on release. That is about throughcare and a consistency of support for people who can be extremely vulnerable when they are in prison and when they are first released.

It is reassuring to hear the cabinet secretary state that active consideration is being given to the best model for ensuring ready access to ligature cutters, which are a hugely important preventative piece of equipment that can save lives. In Scotland, SPS staff have to collect ligature cutters from a communal area; in England and Wales, they have been introduced for all front-line staff. The cabinet secretary likes to use the phrase “at pace”, so when will that vital tool be made accessible?

I have already made clear the pace at which we are considering that issue in prisons. In some cases, the issue is currently being dealt with, but I think that it is fairly obvious to most people that the presence of ligature cutters could also represent a threat in a prison environment. The fact that the SPS, Gill Imery and all those concerned are trying to do this in a way that maximises the safety of staff and prisoners shows that that is the right approach. The issue is being dealt with in many prisons, and they are not waiting for the further review that I mentioned or the further update. I am sure that it will be rolled out in a safe way in all prisons in due course.

That concludes the statement. I will allow a short pause before we move on to the next item of business, in the event that front-bench teams wish to change places.