Sheriff finds prison officers who failed to check cell of prisoner who committed suicide should have been disciplined

About this case:

• Citation:
  [2025] FAI 24
• Court:
  Sheriff Court
• Judge:
  Sheriff S G Collins

Jack McKenzie was pronounced dead on 3 September 2021 after hanging himself using the toilet cubicle door in his cell. A similar inquiry was also conducted into the deaths of Katie Allan and William Brown, who also died in Polmont under similar circumstances, but the inquiry into Mr McKenzie’s death remained separate.

The inquiry was conducted by Sheriff Simon Collins KC. The Crown was represented by Ms Cross, senior advocate depute. Representations were also made on behalf of Mr McKenzie’s aunt, Forth Valley Health Board, the SPS, and the Scottish Prison Officers Association.

Proper hatch check

Mr McKenzie was born in February 2001. Both of his parents were drug users, and he was taken to care shortly after his birth, coming to live with his aunt in 2012. In course of 2017 he became increasingly involved in criminal behaviour and was first remanded to Polmont in January 2018. He was remanded to Polmont for the fourth time in January 2021 after appearing in court charged with rape and sexual assault. At no time during his periods of remand was Jack ever assessed as presenting a suicide risk.

On 1 September 2021, Jack was observed in an angry and agitated state, which was common when he was using drugs. A nurse determined that his anger was more likely angry because of events with the management of his case that took place that day and not seeing his solicitor. He was placed under 60-minute observations and removed from association with other prisoners. He was removed from observations the following day by another nurse. No suicide risk assessment was carried out at this time.

Sounds of disturbance were heard from the area around Jack’s cell from 2330 to 0300 hours from 2-3 September. At some point in the night after that, Jack consumed Etizolam and hanged himself from the toilet cubicle door of his cell, with the time of death agreed to be uncertain. However, the two officers on duty did not report a prisoner number discrepancy after one of them, Officer Nelson did not see Jack in his cell at around 0637 hours.

The governor of Polmont recognised that Officer Nelson had been at fault for failing to conduct a proper hatch check at 0637 hours on 3 September 2021. However, he believed that he was contrite and had learned from his mistake, and did not formally discipline him or the other officer on duty, Officer Afzal, who shared responsibility for that shift. Both the Crown and Jack’s next of kin submitted that his death might realistically have been avoided if Officer Nelson had carried out a proper hatch check at 0637 hours, there being no evidence to suggest it was more probable than not that he was already deceased at this time.

Incongruous and unacceptable

In his determination, Sheriff Collins noted the similar FAIs he conducted previously, saying: “Although the particular facts and circumstances of the cases differed, on matters of principle I have found no good reason to depart from or significantly modify the views on anti-ligature issues which I expressed in the Allan & Brown determination. Where possible, therefore, I have sought to refer to and adopt what I said in Allan & Brown – in particular so as to try to focus on other issues particular to Jack’s case.”

Considering the role played by Officer Nelson, he said: “Officer Nelson was a very experienced prison officer. He will have carried out thousands of hatch checks in the course of his career. He will have been aware that if Jack was not in cell 4.56 then there was a discrepancy in the prisoner numbers recorded as being in the hall. He ought to have been aware that such a discrepancy was a serious matter which should not have gone unexplored. Therefore it is of concern that he failed to take action necessary to verify the position, and which would have led to Jack’s cell being opened.”

However, he added: “The Crown’s argument rests on inviting the inquiry to accept and stitch together a number of unreliable, inconsistent and self-serving pieces of evidence in order to find that at some unspecified point of time during the night, being a time after which Jack had consumed Etizolam and would have been obviously under the influence of this drug, it would have been reasonable for Officers Nelson and Afzal to have checked on him by looking through his cell hatch. I am unable to accept that. It invites a high degree of speculation, rather than the drawing of reasonable inferences from the available evidence.”

Sheriff Collins said of the failure to discipline Officers Nelson and Afzal: “The absence of any disciplinary action whatsoever, given the seriousness of the breach of the Patrol Orders, and the possible seriousness of the consequences of it, is incongruous and unacceptable. I do not accept, as SPS submitted, that this was within the range of reasonable responses open to Governor Michie. Rather, it was a response which sends a message to prison officers that they will not be held to account for a failure to ‘do the basics well’, and a message to the wider public that the first response of SPS to poor staff practice in the context of the death of a prisoner is to close ranks and protect its own.”

He concluded: “I recognise and do not underestimate that being a prison officer can be a difficult and demanding job, and that it does not always get the public recognition which it deserves. I also do not suggest that officers will not need to be supported by SPS in the wake of incidents such as that with which this inquiry is concerned. But none of this is incompatible with a proper recognition that poor practice must be investigated and sanctioned, not ignored and therefore - apparently - condoned.”

Sheriff Collins thereafter made seven recommendations, including for the SPS to review instructions given on active patrolling of residential halls, to amend guidance around drug use and suicide risk, and remove as far as reasonably practicable ligature anchor points present in cells at Polmont.