Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, November 30, 2021

Official Report 1028KB pdf

---

Deaths in Prison Custody

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

I call Keith Brown to speak for around 10 minutes.

16:01  

In November 2019, my predecessor asked Her Majesty’s chief inspector of prisons for Scotland and her co-chairs—Professor Nancy Loucks, chief executive of Families Outside, and Judith Robertson, chair of the Scottish Human Rights Commission—to carry out an independent review into the response to deaths in custody, in recognition of the need for increased transparency and better engagement with families following such a death.

That review is complete, and its report has been published today. I take the opportunity to make a statement to highlight that important work and to set out the context of the review and its findings. Members will now have the opportunity to consider and read the report.

First, however, I must offer my sincere condolences to all those who have lost loved ones in prison custody. It is always hard to lose someone close to us, but to do so in circumstances in which we cannot be with them, and may not be clear about the circumstances of their death, must be especially hard to bear.

I am very grateful to Her Majesty’s chief inspector of prisons, Wendy Sinclair-Gieben, and to her co-chairs Professor Nancy Loucks and Judith Robertson, who worked with her to conduct the review, for the comprehensive and robust work that they have carried out. Families Outside facilitated the involvement of families who have been bereaved by a death in custody, and the commission provided expertise on human rights.

Delivering the review took longer than had originally been planned. That was unavoidable, in light of the impact of the Covid pandemic. I thank all concerned for their commitment to the review through challenging circumstances and the very real barriers that Covid imposed on the research process.

The primary aim of the review was to make recommendations on areas in which improvements could be made in the immediate response by the Scottish Prison Service and the national health service to deaths in prison custody—including to the deaths of prisoners who are in NHS care. Most importantly, the review aims to highlight ways in which, in the event of a death in custody, the response to, and experiences of, families could be standardised and improved, so as to provide prompt answers, transparency and compassion.

At the outset, I highlight that it was not the purpose of the review to include or consider the investigation of deaths in prison. The Lord Advocate is the independent head of the system for the investigation of sudden and suspicious deaths, and the Crown Office and Procurator Fiscal Service carries out that work on her behalf. As such, the investigation of deaths that have occurred in prison, including criminal investigations and arrangements for fatal accident inquiries, are outwith the remit of the review.

In Scotland, a fatal accident inquiry is mandatory whenever someone has died in prison custody. The Crown Office undertakes independent investigations in advance of mandatory FAIs.

As I said, I am grateful to the management and staff at the Scottish Prison Service and in the NHS for engaging with the review and informing its recommendations. The review makes a number of important recommendations, highlighting practical, operational and compassionate changes that are needed to improve the ways that deaths in prison custody are handled and responded to in Scotland by both the Scottish Prison Service and the NHS. Those changes include training that is grounded in the appreciation of the impact of death, as well as early empathetic engagement with families.

We will work with the SPS and healthcare delivery partners to ensure that those recommendations are delivered. I know that the SPS has already implemented some immediate improvements, such as compiling a booklet that signposts families to bereavement services and support. I look forward to seeing more of the changes that will be implemented in the coming months.

I put on record my appreciation for the SPS and prison-based NHS staff who care for some of the most vulnerable people in our society. As I saw at first hand when I visited Perth prison earlier this month, the overwhelming majority of staff are extremely committed to ensuring the health and wellbeing of the people they care for and want to do the right thing with regard to their loved ones. It is clear that although systemic and operational changes are needed, particularly in standardising an improved response in the event of a death, there are, and have been, very real efforts by staff to support one another as well as the prisoners who are impacted by a death.

Most of all, I express my gratitude to the families who either participated in the research process or who formed the family advisory group. I understand that the advisory group met monthly for the duration of the review, providing lived experience and expert views on the issues that they looked at. I am very aware that their involvement over such an extended time period may have required a great deal of emotional resilience. I thank them for their time, their willingness to revisit the grief that they experienced and the insights gained through their participation.

Turning to the report itself, last Thursday, the law officers and I met the chairs of the review to discuss their findings and recommendations. Although I have not yet had the opportunity to fully consider the detail and implications of all the findings and recommendations made by the review, I want to be clear to Parliament that I accept the recommendations in principle.

In respect of the key recommendation, I agree that an independent body should carry out an investigation into every death in custody. The recommendation is that an independent investigatory body, which immediately starts the process of engaging with the family and agencies, provides transparent and prompt information to families at an early stage, thus better meeting the needs of bereaved families. Families want to know as quickly as possible how their loved one died and what the circumstances of their death were. That would complement the independent investigation by the Crown Office into the circumstances of the death, the information provided to families by the Crown Office in terms of the families liaison charter, and the subsequent FAI, which is presided over by the judiciary.

I highlight at this stage that it is clear that the suggested recommendation around the independent body does not, and should not, replace any of the current inquiry processes. The current FAI process, as enacted in legislation in 2016, follows an in-depth review of the FAI system. There have been improvements in relation to the system of FAIs since the introduction of the legislation and the modernisation project undertaken by the Crown Office in 2019. That will be further enhanced by a specialist Crown Office team that will focus on the investigation of deaths in custody and the resulting FAIs, bringing together a number of specialist disciplines. That recommendation will of course require some further detailed practical and legal consideration, in conjunction with the Crown Office and Procurator Fiscal Service and other partners. That will take time, but I commit to doing that as quickly as possible.

Overall, the findings point to a lack of consistency in the way that deaths in custody—and, specifically, engagement with the family by the Prison Service in the event of death—are handled. Indeed, although families’ experience of the way that they are consulted and considered varies, at present, that engagement tends to lack the compassion that we might expect. I believe emphatically that that does not represent a lack of compassion or humanity on the part of the Prison Service, but rather points to the need for staff training in relation to how to have difficult conversations and what information can be shared, and when. As we know, conversations about death are never easy and require maturity, sensitivity and empathy. Staff can be coached to enable them to hold those conversations in ways that uphold the dignity of bereaved families while also providing them with valuable answers and support.

I am pleased that the review acknowledges the good practice that exists, such as the meetings with families that struck a sensitive tone, invitations to families to visit the establishment and see where their loved one had lived, for context, inclusion of families in memorial services and the facilitation of families meeting friends and cell mates.

I have been told that the review team heard examples of staff being sensitive and supportive, but I note that that was not universally the case. I accept that, through trauma-informed training, which I mentioned, and a review of operational processes, what is an extremely difficult time for bereaved families could be made less traumatic, and families could be treated with more compassion. I reiterate that I am committed to improving the immediate response to bereaved families who have lost a loved one while they were in prison custody.

Although this is outwith the scope of the review, I have raised the issue of notification of victims in the event of a death in custody. I am aware that that service is already provided by the victim notification scheme and will be subject to review in its own right next year.

Along with relevant key partner agencies, I will hold a round table at the beginning of next year to map out what needs to be done to deliver on the review’s recommendations and make the necessary changes to operations.

The review is substantial. We will work on the recommendations and advisory points that the chief inspector and her co-chairs set out. Our ultimate aim is to improve the ways in which the deaths of loved ones in prison custody are experienced by bereaved families. It is important that, as a progressive society, we have transparency, a trauma-informed approach and a compassionate justice system that understands that improvements need to be made to better deliver for families.

Finally, I commit to giving Parliament a full update on progress by summer 2022.

The cabinet secretary will take questions on the issues raised in his statement. I intend to allow around 20 minutes for questions, after which we will have to move on to the next item of business.

I thank the cabinet secretary for his statement and I thank the review group for its work. I say to the family of anyone who has died in custody that we share their grief here today.

What is a rather stark report is summarised well on its front page:

“Two pillars of trauma-informed practice are choice and control. Our Review showed clearly that families bereaved through a death in prison custody have neither.”

The report paints a grim picture of systemic failings in how we prevent and deal with deaths in custody, many of which go unknown and unnoticed. People with mental health problems who die by suicide and people who die of drug overdoses in our prisons are the silent victims of our justice system. There have been 39 such deaths so far this year. The families of those people have been let down on many levels, many times.

Most worrying is that the report says that little is being done right now to learn lessons and prevent future deaths. I hope that the report acts as a wake-up call and catalyst for change.

The main recommendation is for a new, independent body to oversee investigations into deaths in custody. How will that remove, augment or duplicate work that is currently in the remit of the Crown Office and existing bodies? If legislation is needed to create the body, will it be introduced? Will the minister back our repeated calls for a statutory timeframe for fatal accident inquiries, for which the report also calls? Given the stark seriousness of the situation, which of the report’s recommendations can be acted on straight away, so that even just one life might be saved as a result of the report?

I thank Jamie Greene for his questions and will try to address them in turn.

First, he said how important it is for the Prison Service and others to learn lessons. A trenchant criticism in the report is that, although an individual death in custody might lead to the learning of lessons, such learning is not cumulative. We do not bank that learning for the future. The establishment of an independent body might be one way to ensure that that happens. Other recommendations in the report, as Jamie Greene will know, should ensure that it happens. We have to learn continuously and not forget lessons that have previously been learned. I take that point on board.

Jamie Greene also asked how the independent body would fit with the other bodies that are, necessarily, involved after a death in custody. That is an important point. In my discussions last week with the authors of the report and the law officers, we all acknowledged that there will have to be substantial work involving the Crown Office, the Lord Advocate and various other bodies, to ensure that the independent body fits properly with other bodies, because we cannot allow any system to prejudice a criminal report or undermine the Lord Advocate’s constitutional position in relation to FAIs. That is a real concern. I cannot answer the question now; all I would say is that those discussions will take place. We will ensure that one body does not trip over another.

I very much take his point about speed—it has been a criticism in relation to FAIs, too. The report specifically says that the investigations should be completed

“within a matter of months.”

I agree, which is why, between now and when I come back to the Parliament to report on the issue, I will take action to ensure that we do not lose sight of the need for a quick response to the families. Communication and speed of response are perhaps two of the top three asks of families in those circumstances, so we must act on them.

However, it is only when we have had the chance to look further into the report’s findings and take part in discussions with other partners that we will be able to tell whether further legislation is required. As I have said, I am happy to come back to the Parliament and report on that in due course.

I thank the cabinet secretary for the chance to question him on this important area of policy.

The report is damning on Scotland’s approach to deaths in custody. Prison officials have been accused of corporate homicide for their failures in the investigation of the deaths of, to name but a few, Allan Marshall, whose family does not feel that it has any answers; and William Lindsay, or Brown, and Katie Allan, whose families still await a fatal accident inquiry.

The report goes on to say that the Scottish Prison Service is seeking to limit accountability, that there is a “lack of family engagement” at

“every step of the journey”,

and that

“humanity and compassion are at times compromised”.

The cabinet secretary will know that the evidence shows that the involvement of families in fatal accident inquiries and investigations makes a huge difference to any outcome and recommendations.

Does the cabinet secretary believe that the independent body should have unfettered access to all relevant material, including the data, and that there should be a duty on the Scottish Prison Service to retain all relevant information, as the report recommends?

In responding to Jamie Greene’s question, the cabinet secretary has answered my question about whether the independent body will be able to shorten the time that it takes to get answers. The cabinet secretary said that it could do so.

Finally, does the cabinet secretary believe that, in order to change the direction of the horrendous figures and the way that families are treated, the new body must be given unfettered access so that it can provide the answers that families need?

I cannot immediately think of any reason why the body should not have those powers. Unless a compelling reason why the new body should not have those powers comes up in the discussions with other partners, I cannot think why we would want to fetter the new body, which is independent for a reason.

The member will see that other recommendations refer to data and information being provided more readily, for example to families. Why, then, would we not provide that information to the independent body? It would seem wrong not to do so. As I say, we will have to have those discussions with our partners. We will come back to the Parliament and the Parliament will have a say on that.

Pauline McNeill’s other points are really important—they are issues that can sometimes be lost. People need to be informed of someone’s death and spoken to in a way that shows understanding of the impact of that death. I do not blame the prison service; across the justice system, people are doing their job and they do not necessarily see it as central to that job to take the trauma-informed approach that we must embed right across the system. They are doing their job, but it is important now that we say that there is more to it than that. When we are dealing with people who have lost somebody through death in custody, we have to make sure that they get the right information—and as much information as possible—that they are spoken to in an understanding way about the loss that they have experienced and, crucially, that they get answers quickly.

I cannot say for certain that there would not be a case that, for some reason, took longer than a year, but if the standard is to be a matter of months—not necessarily 10 or 11 months—that would be much better for the families. The report makes a serious attempt to address some of those fundamental concerns.

I ask for succinct questions and answers. We have used up more than seven of the 20 minutes available for two questions. I do not want to prejudice all the back benchers who wish to ask questions.

The cabinet secretary mentioned the importance of ensuring that staff are well trained in how deaths in custody and engagement with families in the event of death should be handled. Can he say any more about what can be done to ensure that staff are trained to hold such conversations sensitively, while providing answers and the support that families require?

The review makes several important recommendations highlighting practical, operational and compassionate changes that are needed to improve the ways that deaths in prison custody are handled and are responded to by the Prison Service, the NHS and others. As the report suggests, and as Rona Mackay hints, those changes will require training. We will work with the Prison Service, the NHS and the Crown Office to ensure that those changes are made.

Against a backdrop of rising prison deaths, families have told the report’s authors that the authorities often do not care about the deaths of addicts. The cabinet secretary has committed to ending drug-soaked prison mail, which will save lives. Can he tell us exactly when that will happen?

The Scottish statutory instrument was laid in Parliament today. As the member will be aware, it is subject to parliamentary scrutiny, but we hope that it will come into effect on 13 December.

Can the cabinet secretary provide any further information as to how the voices of prisoners’ families and human rights experts have been represented throughout the review process?

As the member hints, it would have been wholly wrong to have had such a review without involving the families. I have already mentioned the family advisory group, which met monthly for the duration of the review. It was made up of 12 people from eight families and informed the work of the review throughout the process by providing lived experience. The helpline team from Families Outside also collated inquiries from families regarding concerns for someone in prison.

Judith Robertson, chair of the Scottish Human Rights Commission, was appointed co-chair of the review. I reassure the member that we will ensure that the involvement of families continues as we take forward the report’s recommendations.

The cabinet secretary said that he agrees “in principle” with the key recommendation of the report that a separate independent investigation should be undertaken into each death in custody. Does he agree that, as part of that, it is vital that an independent investigator has early access to all witnesses, while events are still fresh in their minds?

That is why I said that I agree “in principle”. As the member will know, perhaps better than me, in practice there are dangers with such inquiries in relation to any possible criminal prosecution or FAI. There is a lot of work to be done to ensure that those who carry out such inquiries as independent bodies ensure that they do not jeopardise any future potential criminal case and that when they talk to witnesses they do not impinge on that process. However, the ability to get into the situation quickly and to provide facts to the families is very important. That is the thrust of what we are trying to do. Some of those issues have to be worked through and that is why we need more time.

I met the governor of Shotts prison last week concerning my constituents’ relative who died while serving a prison sentence. His relatives do not want another family to face the outcome that they did. Can the cabinet secretary advise us what steps are now being taken to reduce the number of drug-related deaths in prison custody and how improved data transparency on deaths in custody will help families to find closure?

As I said in response to Russell Findlay, an SSI is being laid in Parliament today, which will amend prison rules to allow prison officers and employees to

“copy and, for the purposes of investigating whether it contains a prohibited article or unauthorised property, test”

that correspondence. My hope is that the rules will come into force on 13 December, subject to parliamentary scrutiny.

I thank the authors of the report and give credit to the families who have dragged the Government to this point, determined to secure change for others because of the pain that they have endured.

Does the Cabinet Secretary for Justice and Veterans acknowledge that many of the lessons of the report, including the need for learning to prevent more deaths, for investigations to happen quickly, and for families to be kept updated, also apply to FAIs, which continue to routinely compound the pain of families and which ministers deliberately excluded from the review?

I may have misheard Mr McArthur, but I did not catch the question there. The report was about the response of the Prison Service and the NHS to deaths in custody. Overriding that is the ability of the Lord Advocate to instruct a mandatory FAI when there is a death in custody.

The process that Mr McArthur mentions was not the subject of the review, but it has been reviewed and agreed by the Parliament. Although there are objections to it and I listen to those objections and concerns, some of which have just been raised by Mr McArthur, I have not yet seen an alternative proposal put forward. I would be happy to listen to such a proposal, but in the meantime, the review takes forward what the SPS and the NHS can do in relation to deaths in custody, when people are in their care.

Can the cabinet secretary provide any further information on the steps that are being taken to provide mental health support to people in prisons to mitigate the risk of suicide?

Front-line prison officers and our NHS staff work hard every day to support people in custody, including those who use challenging behaviours as a means to communicate their distress. We know that people in custody present higher levels of risk and vulnerability than are found in the general population.

Our mental health transition and recovery plan, which was published in October 2020, made clear our commitment to continue to work with partners to seek better support for those with mental ill health in the criminal justice system, including in prisons. A cross-portfolio ministerial working group has been formed to identify the issues that the justice system faces in relation to mental health and to look at ways to apply original and creative solutions to those issues.

I echo the cabinet secretary’s thanks to the review’s co-chairs and everyone who supported its work, especially the families who have lost loved ones in custody—I extend my sympathies to them.

The review highlights that, despite their best efforts, its authors

“experienced challenges in securing the participation of prison staff”

and had no control over

“ensuring randomised selection of participants and informed consent.”

Similarly, no women in custody participated. Those issues should be significant causes for concern, perhaps the latter especially, given recent and forthcoming discussions about gender inequalities in our institutions.

Will the cabinet secretary outline what additional information and research he thinks is necessary to ensure that we better understand the experiences and views of women in custody, as well as those of the prison staff who support them?

In relation to taking that issue forward in discussions with partners, those partners will be listening to the debate and will take on some of the suggestions about additional information that might be required to ensure that we get the right solutions.

In that context, the member is right to mention that prison staff need training. It is fair enough to say that prison staff should do this, that and the other, but they need to be trained to do those things.

I have mentioned the difficult conversations that prison staff have to have, but the member is right to say that they must be trained and supported in having them to make sure that families are kept aware and that other prisoners are considered when a death in custody happens. It will be a much more trauma-informed approach. We cannot just say that people should do those things; we have to take responsibility for training.

In the next few months, we will learn the other lessons that we have to learn and consider the other information that we have to call on.

One member of prison staff said that participation in a fatal accident inquiry cannot be prepared for and is the single worst experience of the role. What is the Scottish Government doing to support our hard-working prison staff to ensure that they have access to mental health support services and are supported when they have to participate in a fatal accident inquiry?

As I mentioned, the holding of a fatal incident inquiry is not within the gift of the Scottish Government. An FAI is conducted by the Lord Advocate. The member is right to raise the fact that staff will require support, which the report also recognises. He says that we have to do more in relation to that issue, which I accept.

I mentioned the impact on other prisoners of a death in custody, and we have to acknowledge that there is an impact on staff as well. The member’s point is well taken. The report tries to address that issue and the challenge for us is to take it forward and deal with it as effectively as we can.

I call James Dornan, who joins us remotely.

[Inaudible.]—will be taken forward regarding the—

Excuse me, Mr Dornan. I am sorry, but there was a technical problem. Could you start your question again, please?

Certainly.

How will the views and experiences of families inform the work that will be taken forward in relation to the review’s recommendations?

I partially answered James Dornan’s question earlier. He asked about taking the work forward. Early next year, we will hold a round-table discussion to inform the next steps for progressing the review’s recommendations. I am very open to discussion with the chief inspector of prisons and Families Outside, which I have mentioned, on how the views of families and the family advisory group can best be heard in that round-table discussion and how they can help to inform and shape the progress of the recommendations. We will not get to the place where we need to be if we do not have that input from the people who are most affected.

That concludes questions on the statement. There will be a short pause to allow front benchers to move to their seats safely before I call the next item of business.