Deaths in custody - Independent Review of Fatal Accident Inquiries 2025: report

Executive summary and list of recommendations

Overview of Review and general conclusions

The overarching message I heard time and time again during this Review is that, in relation to deaths in custody, the FAI system is not working. Inquiries take far too long, undermining their ability to prevent future incidents, and families are often left feeling confused, unsure of their rights or options and often retraumatised. The recommendations of this Review are intended to offer practical solutions to help in addressing these concerns. They aim to improve the FAI process for families and, in particular, contribute to the process feeling more humane and less traumatising.

The requirements of Article 2 of the European Convention of Human Rights (ECHR) have rightly been highlighted, by a number of those who engaged with this Review, as essential context for Scotland’s current system of FAIs into deaths in custody. A key aspect of Article 2 requires the state to carry out a thorough, independent and effective investigation into a death, particularly where the state was involved in the person’s care (such as when the person is in custody). This requirement has framed my consideration of how the system overall is currently operating, with particular regard to the need for a timely investigation, and meaningful opportunity for family involvement, whilst ultimately delivering an inquiry that is conducted in the public interest. To quote former United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, “a prompt, impartial and effective investigation is key to ensuring that a culture of accountability – rather than impunity – prevails”^[1] .

Some submissions I received over the course of the review made robust arguments for ending the mandatory holding of an FAI into every death in custody in Scotland. It was argued that some deaths in custody come after long periods of illness, are ultimately expected, and it was clear why these prisoners had died. Accordingly, there was an argument for not using public money to investigate these deaths, but to instead focus on unexpected deaths where something might have gone wrong. I understand this point of view, and that these deaths often lead to ultimately unsurprising FAI determinations. However I cannot go as far as to recommend this in my Review. This is in part because of the requirements of Article 2 and the significant legal and policy considerations that would require to be thought through if the practice of mandatory FAIs was to end. It is also because in apparently straightforward natural deaths, the state still has an obligation regarding the care it provides. Even expected deaths can give rise to recommendations to improve healthcare in custody settings and highlight important learning for organisations.

Whilst undoubtedly being one of the most concerning aspects of the current system, I consider that it is not possible to place responsibility for the current intolerable delays on any single organisation. The delays represent a collective failing of a number of bodies independently operating within their own areas of responsibility, without sufficient regard to the need for a holistic approach to achieve a speedy, rigorous investigation followed swiftly by judicial examination by way of the FAI. I do, however, consider that it is the responsibility of the Lord Advocate (and those that provide funding for her functions) to ensure that each investigation is driven at pace. Where there is delay, or even resistance, to handing over evidence, that must be dealt with immediately. When a promised action hasn’t been done on time, that must be addressed immediately. Too often I have heard of cases where progress has ground to a halt because someone has changed job, there has been an unexpected absence, or an email has simply been missed. Equally, I have heard of cases that have been ‘picked up’ after a hiatus and a fresh pair of eyes has decided that extra documentation is required, leading to a trawl of records that are no longer to hand or conversations with staff who are no longer in post. Administrative sluggishness and a lack of urgency are very significant factors in delays. A lack of transparency across the system means that there is little motivation to change.

I have noted instances in published FAI determinations where it has been highlighted that the involvement of Crown Counsel has resulted in greater rigor being brought to bear upon a case. It is essential that a well-resourced Crown Office, equipped with well-qualified, well-trained staff and fortified with all the necessary powers, advances each case at speed. It is intolerable that a process, a primary function of which is the prevention of future deaths of those in state care, should take years to conclude.

Turning to family involvement and the specific barriers families face in the death in custody FAI process, the evidence was multi-faceted but clear. The FAI was described to me by a family member as “brutal, traumatic and damaging” and I entirely understand why.

I consider the following to be the main barriers faced by families in the FAI death in custody process:

• Lack of understanding about FAIs and their purpose – families do not understand what an FAI is for and what it aims to achieve.
• Lack of support and information – families do not feel that there is support within the system to inform them of their rights and choices and what may happen throughout the FAI process. They do not have easy enough access to essential information about FAIs, and any information that they can find is spread across multiple organisations with no single point of contact or information throughout the process.
• Financial barriers – whilst the recent improvements to legal aid are very welcome, they do not ‘kick in’ early enough and families may be left out of the early part of the investigatory process due to lack of representation.
• Inaccessibility of the court process – the overuse and often inappropriate use of joint minutes of agreement^[2] (joint minutes) is confusing, inaccessible and intimidating for families. FAI hearings are often ‘stop-start’ and can take weeks or months, spread across many days, to conclude. The court in which the FAI takes place can be a great distance from where a family is based. This can be challenging for families to manage alongside work and family commitments, especially when coupled with inconsistent provision of remote access to proceedings. Courtrooms themselves can also be an intimidating environment for families and often present physical challenges such as difficulty hearing or following proceedings.
• Lack of follow-through – families do not understand what recommendations made in an FAI determination mean in practical terms or what will happen next in response to them. Families have little confidence that recommendations will be implemented and do not feel that anybody is ‘held to account’ when there have been failings identified. Any hope that they have, that their experience will at the very least lead to positive change, is lost.

Finally, while my Review has focused on FAIs into deaths in custody and the changes that could be made to improve those, many of these recommendations can apply to other types of FAIs and, therefore, may benefit those proceedings also.

List of Recommendations

Recommendation 1: Changes to the way that FAIs into deaths in prison and police custody are carried out should be assessed by the end of 2028, both in terms of what changes have been made and the impact of those changes. This assessment must be published.

Recommendation 2: All deaths in prison custody should be investigated by the new specialist Police Scotland team within SCD Major Crime.

Recommendation 3: If Police Scotland’s new specialist team within SCD Major Crime is not considered to be improving the investigation of prison custody deaths by the assessment in 2028, an independent body (independent of Scottish Minsters, their agency SPS, the private prison operators, the NHS, and any other agencies that might be involved in prison deaths at that time) should be set up to carry out those investigations.

Recommendation 4: Police Scotland, COPFS and any future independent body set up to investigate deaths in custody should hold sufficient powers to compel evidence in any investigation into a death in custody.

Recommendation 5: Scottish Ministers should make it clear to the SPS, and to those operating private prisons, that they are expected to share all information requested by those investigating deaths in prison custody where there is no statutory reason not to and to do so quickly.

Recommendation 6: FAI investigations should not be delayed in order to consider the outcome(s) of internal reviews carried out by other bodies, for example the SPS DIPLAR.

Recommendation 7: If there are matters of concern raised in internal processes such as a DIPLAR or SAER, COPFS should be alerted to those at the earliest opportunity so that they may be considered in relation to the FAI investigation. COPFS, SPS and private prison operators should urgently give consideration to the practical delivery of this recommendation via a memorandum of understanding or protocol. To support transparent processes, such a document should be publicly available insofar as that is appropriate.

Recommendation 8: For a death in prison custody, the Governor in Charge should be the first point of contact with families (after Police Scotland) in all cases.

Recommendation 9: Police Scotland and COPFS should agree a joint approach to supporting families of those who have died in custody which will:

(a) allocate a nominated Police Family Laison Officer (FLO) and a nominated COPFS contact from within the Victims and Information and Advice Service (VIA) in all cases (unless the family do not want these services);

and

(b) determine an agreed route for handing over from the FLO to the VIA,

so that all families have a nominated contact at every stage to explain what they can expect from the FAI process.

Recommendation 10: COPFS should produce a leaflet outlining what an FAI is (its purpose and limitations, what a family can expect, availability of legal aid, the process for finding a lawyer, who their point of contact is etc.) and that leaflet should be made available and discussed at initial meetings with the Police Scotland FLO.

Recommendation 11: Legal aid should be made available to families immediately upon the death of a relative in custody.

Recommendation 12: First Notices should be issued in all cases within six months of the date of death. This should be the case for all deaths in custody from July 2026 onwards at the latest.

Recommendation 13: Scottish Government should ensure that current information relating to the FAI process is brought together in one easily accessible place, and then developed into a comprehensive single source of information about FAIs.

Recommendation 14: If Scottish Government develop a service to provide the families of those who have died in custody with personalised support to navigate the months and years after their relative has died, this service should be equipped to help them navigate the FAI system alongside their other needs.

Recommendation 15: COPFS should review the way in which significant developments, such as the conjoining of FAIs, are communicated to families. This is with a view to making such updates more consistently clear as to the rationale behind decisions, to effectively engage with any family questions about a proposed course of action, or to explain why information cannot in certain circumstances be shared.

Recommendation 16: COPFS should assess the use of joint minutes of agreement, ensuring practice is wholly compliant with the rules of procedure and ensuring that, going forward, joint minutes do not contain evidence that should be tested in the FAI.

Recommendation 17: SCTS should consider the physical layout of proceedings, the use of non-court settings and the availability of facilities such as video links, family areas and private toilets. Particular consideration should also be given to the development, where there is operational need, of further specialist FAI suites such as that at Falkirk Sheriff Court.

Recommendation 18: The conduct of FAIs should be assessed by the judiciary and appropriate changes made, for example in relation to matters such as the wearing of gowns and wigs and the need for families to hear proceedings.

Recommendation 19: COPFS should formalise the current practice that sees it liaising with Sheriffs Principal about upcoming FAI caseloads.

Recommendation 20: The scheduling of FAIs should be more sensitive to the impact on and needs of families, particularly with regard to issues such as multiple preliminary hearings, careful and accurate estimation of required court time and hearings spread over many and often non-consecutive days.

Recommendation 21: Each FAI should begin with a clear reiteration from the Sheriff about the limited purposes of an FAI and a clear explanation of how proceedings are to be conducted, in terms that a lay person can understand.

Recommendation 22: Sheriffs should seek views from families in relation to the provision of a short pen-portrait of the victim whose death is being examined, thus recognising that a human life has been lost.

Recommendation 23: The Lord President should consider the frequency and content of training for Sheriffs in relation to FAIs. Such training should emphasise the importance of Article 2 and aim to ensure that the experience of families is considered, with the inquisitorial nature of proceedings being promoted.

Recommendation 24: Only Sheriffs who have received specific training in FAIs should hear FAIs.

Recommendation 25: The Lord President and the Judicial Institute should be fully supported in the development of a ‘bench book’ to support the judiciary presiding over FAIs. Such a ‘bench book’ would encourage best practice, consistency and robust case management of the FAI to ensure that the FAI process delivers its intended purpose.

Recommendation 26: Sheriffs hearing FAIs should be able and encouraged to issue interim determinations, should they deem that to be useful or appropriate. Court rules should facilitate that.

Recommendation 27: The PIRC and Police Scotland should complete their investigation into a death in custody within three months of the date of death.

Recommendation 28: The PIRC, Police Scotland and COPFS should report annually on their performance against the recommended maximum timescales for their parts of the FAI process (including the target set in Recommendation 12). This report should also examine and provide an explanation for any common delays.

Recommendation 29: The timescales within which each stage of the FAI process is completed should form part of the assessment in 2028, including consideration of what is leading to delay, should delay still exist.

Recommendation 30: Should the assessment in 2028 find that delays are still being experienced, statutory time limits should be introduced.

Recommendation 31: When considering the training relating to FAIs, the Judicial Institute should ensure that it takes into account the best practice available in writing determinations, with a view to ensuring that they are written in a clear and accessible way, and be complete in themselves.

Recommendation 32: Determinations should be issued rapidly, at the longest within a year of the death or deaths they relate to, given that a primary purpose of an FAI is to prevent further avoidable deaths.

Recommendation 33: There should be an independent body established charged with collating, assessing, and tracking implementation of changes necessary as a result of death in custody FAI findings. This body should be resourced in such a way that it is able to critically assess the totality of outstanding FAI findings at any given time, across custody settings in Scotland.

Recommendation 34: The body established to follow up FAI findings should report annually to Parliament and publish additional information or reports in the public interest as required.