Probing Prison Scotland’s Deaths

My curiosity was prodded into life by an article in the Guardian last autumn about the number of prisoners in England and Wales who had committed suicide in the preceding 20 months. 130 men and 4 women had taken their own lives.

The narrative that appeared to be endorsed not only by prisoner pressure groups but also by governors and official watchdogs was that individuals struggling with mental health problems or were otherwise vulnerable were being missed by overstretched and undertrained prison staff.

I wondered what the comparable story might be in Scotland.

The Scottish Prison Service publishes a list of “deaths in prison custody” on its website.That offered one step forward but another back on the way to getting a clear picture. Anyone accessing the site can discover the name, age, ethnicity, date of birth and date of death of the 20 or more individuals who have died each year.

Limiting myself to a round 10 year period, since 2005-6 until January 30th this year the numbers are 214 men and 8 women who have died while ostensibly in SPS care.

I’ll come back to ‘ostensibly’.

But how many of those were suicides and does the proportion compare favourably or otherwise with the England and Wales toll?

I can’t say. There is a column in each spreadsheet headed Cause of Death but 75 of those 222 deaths are listed as Not Yet Determined.

Clearly it takes time for the formalities to be completed even though the facts of some of them have been widely reported in the media. But according to the SPS spreadsheets there are still 3 of the 20 deaths in 2007-8 that have not yet been determined; another 2 of the 17 deaths in 2008-9; and another 3 of the 19 in 2009-10. In total 29 deaths have remained Not Yet Determined in the years prior to 2012-13. 12 of the 18 deaths in 2012-13 remain to be determined - getting on for three years.

I can at this point give one comparable figure. In England and Wales all the prison deaths have been determined, in their term, ‘classified’, up to March 2010. Only 5 of the 383 deaths in the two years up to March 2012 remain unclassified. That’s a much smaller proportion than we seem to have achieved.

In passing, one of the truly shocking details that leap off the SPS pages is the number of prisoners - mostly men - dying of natural causes in their 20s, 30s and 40s.

Another is the proportion of prisoners whose death has been ‘determined’ as suicide who were ‘awaiting trial’. Maybe they’d have been convicted. Maybe not.

It’s time to return to that ‘ostensibly’ qualification.

The Sudden Deaths and Fatal Accidents Inquiry (Scotland) Act of 1976 charges the Crown Office with the responsibility for investigating certain categories of death, principally deaths in the course of work or where there may be serious public concern following a sudden, suspicious or unexplained death.

The Act allows the Lord Advocate a certain amount of discretion in assessing that degree of “serious public concern”. An FAI has to be held in public and successive Lords Advocate have been challenged on their decisions against holding an FAI. It can’t be an easy task.

The third class of death specified in the Act as the trigger for an FAI is when the deceased is in “lawful custody”.

I was naive enough to think that was pretty tightly worded. But when I enquired at the Crown Office about those three ‘not yet determineds’ from 2007 it turned out that, “without going into detail”, two of them may have been serving a sentence but may not have been in legal custody at the time.

Speaking hypothetically, if a convicted person had been, say, on home leave or day release or even escaped and therefore not under the supervision of a prison officer then she or he could not be deemed to be in lawful custody.

Hypothetically that is why two of the 2007 cases never led to an FAI.

And the Crown Office is mystified why the third 2007 case is still listed as not yet determined because an FAI was held and concluded in 2007. The sheriff’s findings are on the Scottish Court Service website.

So is it just a glitch within the SPS that they are recording as not yet determined 7 year old cases that have in reality been long concluded as far as the Crown Office is concerned?

I asked the SPS press office if they could explain from their side. I also asked if the SPS had a figure to match the England and Wales doleful statistic for the number of prisoner suicides per 1,000 prisoners. And I asked how the SPS finds out the cause of death if there is no FAI? And how does the SPS find out the result of an FAI? And how many FAIs they had in their diary for the next couple of months.

I assumed these would be items at the press officer’s fingertips but it turned out otherwise. I have no reason to doubt the explanation that these were questions never previously put and therefore, I was advised, they had been sent on my behalf the long way round through the Freedom of Information process. Answers, therefore, much later.

The job of the Crown Office is to hold the FAI, not to tell anyone about the sheriff’s decision even though they know it. It’s for the Scottish Court Service to publish judgments. And it appears neither of them have to keep the SPS in the loop. But does it really matter if each of the agencies is doing its own job as well as possible?

Well, it matters to those involved – both the family of the deceased as well as those charged with their care as well as their custody. It matters to the prison staff who had to cut down or mop up or retrieve the remains of the deceased. And it matters to the rest of us where issues are identified in the management of prisoners that they are addressed and any recommendations are implemented.

While each of the agencies involved in the process is doing its job it does appear unnecessarily difficult to piece the fragments together to form a complete picture, the essential precursor of transparency and analysis.

So much of our current political discourse seems to depend on a tiresome questioning of the integrity of those who hold a different opinion or the motives of those who work within a system that is imperfect. The man rather than the ball. It wastes a great deal of energy and fuels a political culture of defensiveness that helps no-one.

I see no reason to question motives or integrity but I discover they do prisoner deaths very differently in England. It’s not perfect as the Guardian article makes clear but there is less likelihood that individual cases are left in the shadows.

Since 2004 The Prisons and Probations Ombudsman (PPO) has investigated all deaths in prisons, probation approved premises, immigration detention facilities and secure training centres. No if or buts.

It is informed immediately of all deaths and its staff have a deadline of 26 weeks to compile a draft report on the circumstances of each which goes both to the relevant coroner ahead of an inquest AND to the next of kin.

The Ombudsman’s website states that “the purpose of these investigations is to understand what happened, to correct injustices and to identify learning for the organisations whose actions we oversee so that the PPO makes a significant contribution to safer, fairer custody and offender supervision.”

As in Scotland, the report will not be published until any criminal investigation or proceedings are complete and until, in England and Wales, a Coroner’s Inquest has been concluded.

However, when those proceedings are complete every Ombudsman’s report is published on its website. There is only one place to look.

Not only that but in England and Wales a range of other organisations including Inquest, the Howard League and Prison Reform Trust, are immediately advised of a death in one of these forms of custody. They are not always popular commentators as recent public tussles with the current Attorney General demonstrate but they are acknowledged within the system rather than guessing from without.

Inquest provides support for families affected by a prison death and has a forum of specialist lawyers who can provide representation at a Coroner’s Inquest if required.

In Scotland a fourth player appears in the form of the Scottish Legal Aid Board which holds the purse strings for funding representation for families of the deceased at an FAI or for challenging a decision not to hold one.

There appears to be a better triangulation of transparency south of the border.

Lord Cullen completed a report on reforming the FAI system in Scotland in 2009. Amongst his recommendations was an extension of the categories circumstances of deaths where an FAI would be mandatory to more closely follow the Egland and Wales approach.

Responding to some of Lord Cullen’s observations the Crown Office overhauled its own approach to FAIs, creating a specialist Scottish Fatalities Investigation Unit in 2013. The Crown Office spokesman explains the Unit has helped speed up its own procedures and while still aiming for further improvement is unlikely to be more than a couple of years behind the death except in exceptional cases.

The Scottish Government has introduced a Fatal Accident Inquiries Bill into its legislative programme for the current session though it hasn’t got to Stage 1 of its parliamentary progress yet.

The Bill though builds on the Cullen recommendations and for the first time takes a tentative step towards requiring those to whom sheriffs direct recommendations at the conclusion of the inquiry to respond. That’s not the same as holding them to account if they fail to implement recommendations but it is a start. The bill also looks to ease the bottleneck created by the shortage of court space to allow FAIs to take place in other premises.

There is unlikely to be much opposition in principle to any of the proposals in the Bill but it does not really address the fragmented system that underpins current decison making and reporting of FAIs in general or prisoner deaths in particular.

South of the Border they saw more than a decade ago the value to the public interest of building an independent eye into the process. We still seem to have a national allergy to that sort of scrutiny.

In the meatime, by the time this article is published Louise Park will have attended the final submissions to the sheriff in the FAI following the death of her brother, Thomas David Cameron, who threw himself from the fourth floor gallery of Barlinnie on the 27th March 2013.

Louise has no complaints about the Crown Office - “The fiscal was brilliiant with us the whole time” - but does feel the prison service lawyers and NHS staff lawyers had more time to prepare than her solicitor did while awaiting a SLAB decision. Perhaps she is overestimating the preparation time the other lawyers really did have.

But most of all she wants to know how her brother who was receiving medication for depression and pain came to be quartered on the 4th floor. “He wasn’t the first and hasn’t been the last to throw himself from the top floor. He was in for a serious assault and I don’t expect there’s much sympathy for him but he was my brother.”