7 March 2023

The Crown Office and Procurator Fiscal Service (the prosecuting body of Scotland) today confirmed it has instructed Police Scotland to investigate the Scottish Prison Service for corporate responsibility, including corporate homicide, over the restraint related death of a man in prison in 2015.

This is an historic development, as no public or government body in the UK has ever been prosecuted for corporate homicide.

Allan Marshall, 30, was a much loved father of two from the West of Scotland. He died on 28 March 2015 four days after being violently restrained by up to 17 prison officers in HMP Edinburgh. His family have been fighting for justice ever since.

A Fatal Accident Inquiry (FAI, the Scottish system for investigating deaths) found in 2019 that officers testifying about their restraint were ‘mutually and consistently dishonest’. Despite this, legal immunity granted to officers during the FAI was so broad that the current Lord Advocate for Scotland, Dorothy Bain KC, has determined no officer can be individually pursued for their actions.

Acknowledging inadequacies in how Allan’s death was originally investigated, her office has conducted a comprehensive review, including re-interviewing witnesses and retaining independent experts. They have concluded that grounds exist to mount an investigation into civil and criminal responsibility of the Prison Service itself.

The law on corporate homicide was enacted in 2007 and holds the organisation responsible for a gross breach of a duty of care. This encompasses practices, policies and attitudes in how an organisation carries out its duty.

Though a decision on charges has not yet been made, initiating proceedings is a significant step that will send shockwaves through the Scottish Prison Service as well as in police and prison agencies throughout the UK. The law is UK wide and can be used to explore managerial responsibility over deaths in custody.

Allan’s aunt Sharon MacFadyen, and Alistair Marshall, his brother, said in a joint statement: “We as a family have always believed that the investigation into Allan’s death was a sham and was completely mishandled by the police and the Crown from the very beginning. Nearly eight years on, the Lord Advocate now agrees with us.

“However, she has also told us it’s not legally possible to prosecute any individual officers for any part they may have played in Allan’s death because they were all given immunity before the Fatal Accident Inquiry. This is extremely disappointing for us, and we say that this gives officers a licence to kill.

“We are grateful that action is now being taken, but it shouldn’t have taken eight years, and it could still lead to a decision not to charge Scottish Prison Service for what happened to Allan. No other person should die like he did and no family should go through what we have. We will continue to demand justice for the loss of Allan who was a much-loved member of our family.”

BACKGROUND:

• Allan was placed in jail on remand, accused of a breach of the peace in March 2015.
• In the midst of a mental health crisis after several days in custody, he was removed from his cell. Eventually 17 officers responded, holding him down including using their feet to restrain him. Post-mortem examination concluded he died of a brain injury during physical restraint.
• The Crown Office and Procurator Fiscal Service determined no criminal proceedings were warranted soon after his death, and arranged for all those involved in Allan’s restraint to be immune from prosecution from any action related to this.
• The FAI report in 2019, four years after his death, was uncommon in identifying defects in prison service systems, several reasonable precautions that could have prevented death and made recommendations to avoid a similar incident. The Sheriff concluded that Allan’s death was “entirely preventable”.

Deborah Coles, Director of INQUEST, said: “The unprecedented decision to investigate the Scottish Prison Service for corporate homicide is hugely significant. Yet it is clear from the evidence that it is necessary and long overdue.

Without the determination of Allan’s family in campaigning and pursuing legal action, his preventable and violent death would have gone unchallenged. We hope the investigation progresses without further delay.

Justice in this case is in both the family and the public's interest. We hope this decision will set a precedent to ensure more public and corporate bodies face such investigations and are held to account.”

ENDS

NOTES TO EDITORS

Media contact for Marshall family and legal expertise:
Sharon MacFadyen: 07727 126263
Sarah Armstrong: [email protected]

For more information see the timeline from the family campaign Justice for Allan Marshall.

CCTV footage of the restraint prior to Allan’s death was published by the Daily Record and is available here.

The full conclusions of the Fatal Accident Inquiry in 2019 are available here.

INQUEST primarily works in England and Wales, but has been advising and supporting a small number of bereaved families, including Allan’s, and their legal teams in Scotland as well as undertaking research.