The Scottish Prison Service has admitted breaching human rights law by causing the death of a man who was restrained by 17 officers and has apologised to his family.
In a series of unprecedented admissions, Police Scotland and the Crown Office accepted they similarly breached Allan Marshall’s right to life under article 2 of the European convention on human rights when they failed to carry out an adequate investigation into his death in custody.
Police Scotland and the Crown Office also apologised to the family.
Marshall, 30, from South Lanarkshire, had a cardiac arrest in 2015 after he was restrained for at least 40 minutes at HMP Edinburgh. The father of two, who had an underlying heart condition, died in hospital after four days in a coma. His cause of death was recorded as brain injury due to cardiac arrest during physical restraint.
After 10 years fighting for accountability, Marshall’s aunt Sharon MacFadyen found that bringing action under article 2 was one of the only remaining routes to secure a measure of justice after the Crown Office took what campaigners have described as the “extraordinary” decision to grant the prison officers lifelong immunity from prosecution.
Speaking after Friday’s hearing at the court of session in Edinburgh, MacFadyen said: “Myself and Alistair, Allan’s brother, have been fighting for justice for Allan since the day he died. These admissions confirm what we’ve always known – that prison officers killed Allan by using unnecessary and excessive force on him.
“This victory is not just for Allan but for every family who has lost someone in custody and been denied justice.”
Screengrab of video footage of Marshall in custody in a corridor at the prison, believed to be shortly before his death. Photograph: Just Right Scotland
All three public bodies made a series of factual and legal admissions that were lodged with the court on Friday. The Scottish Prison Service admitted to causing Marshall’s death through unnecessary and excessive forcible restraint by prison officers. The Crown Office and Police Scotland admitted they failed in their legal duty to properly investigate his death and to ensure those responsible were held accountable.
These stark admissions are likely to have wider implications for deaths in custody and investigations into them across the UK. Barbara Bolton, the legal director at the charity JustRight Scotland, said the ruling set an important precedent.
The case comes amid ongoing criticism of Scotland’s inquiry system for delays and lack of enforcement powers.
A fatal accident inquiry (FAI) held four years after Marshall’s death heard that he was on remand awaiting a court appearance on charges of breach of the peace. After showing signs of mental distress, he was not offered any medical assessment but transferred to a segregation unit, at which point he became more agitated.
He was then restrained by a group of 17 officers, who held him face down with his limbs raised and used feet to push him to the ground. Harrowing CCTV footage shows Marshall being dragged face down by officers and kneeled on as he tries to shift position in order to breathe. The 2019 inquiry ruled that his death had been “entirely preventable”.
Bolton said: “The Scottish ministers, for the Scottish Prison Service, have finally admitted that Allan Marshall’s right to life was breached by the very institution responsible for his safety and wellbeing.
“His family were further severely let down by the authorities tasked with investigating deaths in prison custody. Police Scotland and the Crown failed to adequately investigate his death, including by granting an amnesty to the prison officers involved in the unlawful restraint. The Marshall family should not have had to fight for over 10 years to obtain acknowledgment that Allan Marshall’s rights were breached.”
Jo Farrell, the chief constable of Police Scotland, said: “The investigation following the death of Allan Marshall in 2015 fell below the standard required and for that I am sorry.
“On behalf of Police Scotland, I apologise to Allan’s family and place on record my condolences for their loss.”
A Scottish Prison Service spokesperson said: “We sincerely apologise for failings which resulted in the sad death of Mr Marshall and our thoughts and condolences remain with his family. We have learned from this and have taken forward and actioned the recommendations from the FAI, as we continually seek to improve how we support staff and keep people safe.”
A spokesperson for the Crown Office and Procurator Fiscal said: “The Lord Advocate has apologised for the failures in this case and offered condolences to Allan Marshall’s family.
“Since these events, COPFS has undertaken significant reforms. Bereaved families can expect investigations to be pursued with the vigour and expertise they deserve.”
