Scottish Government loses bid to stop court action by family of man who died in custody

The Scottish Government has lost a bid to stop a court action brought by the family of a man who died after being restrained by 17 prison officers in custody.

Lawyers for the Scottish Ministers asked judge Lord Sandison to halt a compensation claim brought by Sharon MacFadyen over the death of her nephew Allan Marshall.

Mr Marshall, of South Lanarkshire, died in 2015 after he was restrained for at least 30 minutes whilst on remand at HMP Edinburgh.

The dad-of-two, 30, had a heart condition and died in hospital four days after the restraint. His cause of death was registered as brain injury due to cardiac arrest during physical restraint.

Ms MacFadyen has brought a legal action against the Scottish Prison Service for breaching her relative’s human rights. She says Mr Marshall’s rights under article two of the European Convention on Human Rights – the right to life were breached by the prison service employees as a consequence of the restraint.

Prosecutors granted what campaigners describe as the “extraordinary” decision to give the prison officers lifelong immunity from prosecution.

However, lawyers for the Scottish Ministers asked Lord Sandison to sist the case – the legal term given to a temporary halt. They asked for this to be put in place for six months

They lawyers told the judge that their request should be granted because the police were investigating the circumstances surrounding Mr Marshall’s death.

They said that the probe could result in criminal charges being brought against the Scottish Prison Service – an agency which the Scottish Ministers are responsible for operating.

The legal team argued that to continue the case would mean the Scottish Ministers would have to state a position in relation to the possible criminal charges.

They believed that this could prejudice any future any criminal case.

In a written judgement published by the court on Wednesday, Lord Sandison rejected the arguments made to him by the Scottish Government.

He wrote: “In the present case, as matters stand, no person has been charged with any offence and there is no indictment available for analysis.

“There may be cases where the prospect of criminal proceedings is so clear, and their likely nature so obvious, that the absence of charge, complaint or indictment will not present an insurmountable hurdle to the conclusion that existing civil proceedings should be sisted on the application of the principles just noted.

“In this case, however, it remains entirely unclear whether the current investigation will reveal a sufficiency of evidence to support a prosecution in respect of any particular offence or, if it does, whether the second defender will consider it in the public interest for any such prosecution to be undertaken.

“It is unknown when matters might be clarified in these regards; for now, the police investigation continues at a somewhat stately pace.

“In these circumstances, any analysis of the issues which are likely to arise in future criminal proceedings could be no more than speculative in nature.

“Speculation is not an adequate ground upon which to reach any conclusion that adherence to the normal timetable in these proceedings poses any real and specific and risk of prejudice to the effective prosecution of any crime which may or may not have been committed.

“The first defenders accordingly fail to overcome the threshold requirement for consideration of whether a sist might otherwise have been appropriate.”

A fatal accident inquiry into the circumstances surrounding Mr Marshall’s death was held in 2019.

The inquiry heard that Mr Marshall had been remanded on breach of the peace charges.

He was transferred to a segregation unit in the jail after showing signs of mental distress. However, he wasn’t medically assessed and he became more agitated.

He was then restrained by a group of 17 officers, with some using their feet – which is not standard practice.

CCTV shows Marshall being dragged face down by officers and kneeled on.

The inquiry concluded that his death had been “entirely preventable”.

BBC journalists then saw an internal review carried out by prosecutors in the case which found that the decision to grant immunity to the officers involved to be “incorrect”, and further concluded that the police had not properly investigated his death.

The family have brought the action against the Scottish Ministers, the Lord Advocate and Police Scotland.

According to the judgment published in the case the family of Mr Marshall are seeking legal orders stating that the defenders acted unlawfully. They are also wanting damages from the defenders.

They claim in relation to the prison service, that the staff who restrained Mr Marshall failed to comply with their article two obligations by using force against him “which was not absolutely necessary nor strictly proportionate to any relevant legitimate aim, and separately by failing to ensure that any risk to his life was minimised, resulting in his preventable death.”

In relation to the Lord Advocate and the Police, they claim that Mr Marshall’s death obliged them to carry out an investigation which is “effective, independent and expeditious”.

The family believe that such a probe hasn’t been carried out.

The case will next call in court sometime in the near future.