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

Recommendations

As far as possible, I have tried to present my recommendations in a chronological order mirroring the death in custody FAI process, starting with the investigation into a death in custody, through the FAI process, and finishing with some overarching points. I would like to note here that no single one of these recommendations will change the system enough on its own. They must be taken together if we are to improve the overall efficiency, effectiveness and trauma-informed nature of investigations into deaths in prison or police custody, as well as ensuring that meaningful change and improvement is delivered by the FAI system. Quite simply, there is no silver bullet here. Improvement in a number of related, but distinct, areas is required.

I also wish to highlight here that many others have considered FAIs into deaths in custody over the years and have suggested ways to improve the way they work. Disappointingly, many of those ideas have not been followed through. In addition, while I have heard that other changes have been pushed forward in the way that some key organisations operate, there is no public or transparent assessment of the impact of any of this change.

My first recommendation is, therefore, that progress on improving FAIs into deaths in custody should be assessed in three years’ time. Progress should be judged in terms of whether FAIs are being concluded faster, whether the system is more humane and family experiences have improved and, ultimately, whether the system overall is leading to a reduction in preventable deaths. That assessment should consider what changes have been made, as a result of this review or in reaction to other suggestions past and future, and what impact those changes have had. The outcome of this assessment must be published.

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.

Investigation

In 2021 the Independent Review of the Response to Deaths in Custody^[3] recommended that “a separate independent investigation should be undertaken into each death in prison custody. This should be carried out by a body wholly independent of the Scottish Ministers, the SPS or the private prison operator, and the NHS.” Everything I have read, seen and heard confirms that independent investigations are essential in these cases. I have also heard how the number of agencies currently involved, working in sequence rather than in parallel, contributes to delays and undermines trust in the investigation and the FAI process that follows. I believe that this has been allowed to develop largely due to the lack of transparency created by having many organisations involved.

Deaths in police custody are investigated by the PIRC, which is appropriate as the Police Scotland cannot be asked to investigate themselves. It is important that deaths in prison custody are also investigated in a professional and independent manner.

I understand that Police Scotland have recently established the Complex Case Team within Specialist Crime Division (SCD) Major Crime. This team now has responsibility for the investigation of complex deaths occurring within a prison custody setting. In addition, it provides oversight and governance around death in prison settings which are investigated by Police Scotland. I also understand that when a death occurs in a prison setting, it is assessed in terms of complexity, the skill set required of investigators, the anticipated length of investigation and resource required. Based on this assessment, ownership within Police Scotland is decided. More complex deaths are investigated by the Complex Case Team, with the less complex remaining with the respective division under the ownership of a dedicated Detective Inspector.

My hope is that the establishment of the new team will mean that the investigation of deaths in custody will be properly resourced, carried out with the required level of rigour and professionalism and by a team that will build knowledge and expertise over time. I have been informed that there is sufficient expertise within this unit to investigate, for example, the adequacy of medical care within prison settings prior to a prisoner’s death.

However, I consider that even deaths which appear, on initial investigation, less complex may still give rise to important learning points or uncover serious issues. Several examples were given to me in the evidence I heard. For this reason, I consider that all deaths in prison custody should be investigated by a specialist team, such as the existing Complex Case Team.

Recommendation 2

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

Given the recent development of the specialist unit within Police Scotland, I think it is only fair that this team is given time to prove itself. I also think it is only fair, to those in custody and their loved ones, that if this approach does not have the desired impact, then a new, independent body dedicated to the investigation of deaths in prison custody is established. This body could still report to COPFS like other investigating agencies do, but it would be solely responsible for the investigation of deaths in prison custody, in a role broadly similar to those of the PIRC (where deaths occur in police custody in Scotland) or the Prisons and Probation Ombudsman, who investigated prisoner deaths in England and Wales. The assessment in 2028 should be the trigger for a decision on this.

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.

Whether responsibility for the investigation of deaths in prison custody remains with Police Scotland, or is transferred to an independent body, it is clear to me that those investigating deaths need powers to compel the provision of evidence. Where there is investigation into possible criminality, COPFS and Police Scotland can already compel the provision of evidence. But where criminality has been ruled out, it has been reported to me that the sharing of information often relies on the goodwill of those who hold information and may be constrained by data protection concerns and other considerations. That is an unacceptable situation. All those investigating deaths in prison custody should have powers to compel evidence. If an independent body is set up in the future to investigate these deaths, it should also hold these powers.

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.

I realise that this could take time to implement, and therefore I am also recommending that Scottish Ministers make clear to those operating prisons in Scotland – that is their agency (SPS), and private companies contracted to provide prison services – that they are expected to promptly share all information requested by those investigating deaths in prison custody. Where there is no statutory barrier to sharing information, it must flow faster. If that requires new or improved protocols between organisations to be put in place, then those should be agreed quickly.

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.

The final point I wish to make, in relation to the investigation that takes place after a death in custody, relates to the internal reviews carried out by responsible organisations, mainly;

• Deaths in Prison Learning and Audit Reviews (DIPLARs) led by SPS; or
• Serious Adverse Events Reviews, (SAERs) led by the NHS.

I particularly note the current reliance on the DIPLAR report in the FAI process and have heard how FAIs have sometimes been delayed for years whilst awaiting the outcome of a DIPLAR. Whilst I understand that DIPLARs are carried out for the entirely legitimate purpose of seeking improvement to internal prison practice, they are effectively the prison investigating themselves and therefore should not be relied upon for an FAI investigation. I recognise that, in pushing ahead with an FAI investigation in advance of considering a DIPLAR report, there is a risk that potential areas of investigation are brought to the attention of COPFS at a later stage of the investigation. I consider that, on balance, progressing the FAI investigation quickly is better than waiting for a DIPLAR report in every case.

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.

Support for families

Although my overwhelming sense gained over the course of this review is that individuals working within the system are doing their best to support families at one of the worst possible moments in their lives, I have also learned of unacceptable examples of insensitivity and indifference to families of those who have died in custody, some to the point of callousness. Despite this I have witnessed first-hand the way in which many families accept the inherent limitations of an FAI and what it can achieve. I have the utmost respect for the families’ universal wish to see that others do not suffer what they have gone though.

I am also conscious that a key aspect of compliance and effective investigation in relation to Article 2 of the ECHR is the participation and involvement of family members. FAIs are, by their nature, carried out in the public interest. However, I consider that this public interest is best served when families have had meaningful involvement in the FAI proceedings. I am therefore determined that the FAI system places the families of those who die in custody at its heart and allows for their involvement to the greatest extent possible. It should treat them with the sensitivity, dignity and respect that is the entitlement of any bereaved family. Practices must be sensitive to their individual interests or preferences and ensure that families are provided with context and information that allows them to understand the process, what they can and cannot expect, and as much information as possible (if they want it) as to the progress of the investigation.

Placing families at the heart of this process starts, in reality, well before the FAI itself. It begins with the way in which a family are notified of a death and how they are supported through the very early days. I heard directly from families how poorly that notification is managed in some cases, with some of these poor experiences recorded in the report of the Family Listening Day that I attended^[4]. Again, I refer to the recommendations of the 2021 Independent Review which provided that “The Governor in Charge (GIC) should be the first point of contact with families (after the Police) as soon as possible after a death. An SPS single point of contact other than the Chaplain should maintain close contact thereafter, with pastoral support from a Chaplain still offered”. I think this continues to be appropriate, in particular that someone other than the Chaplain is charged with conveying necessary factual information, and understand that it is SPS policy to follow this recommendation. However, I have heard that this is not consistently the case in reality.

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.

I have heard from many families that understanding the totality of what can follow a death in custody is extremely difficult, in particular when they are not steeped in the workings of the justice system, are grieving and are dealing with all the administration that comes with any family bereavement. I have heard that organisations tend to limit their information to the part of the landscape for which they have responsibility, and that there is no single place or person that a family can go to, to understand everything that might happen in the months or years that follow their relative’s death.

This leads me to conclude that a number of changes should be made to the support that families receive when a relative dies in custody.

I have heard how difficult it is for families who don’t know from one point to the next who they can contact or what they can expect over time. The first of these changes therefore is to make it clear to families, from the outset, who will be their points of contact from the day their relative dies until the point at which the FAI into the death of their relative is concluded. I appreciate that different families will have different needs but I believe that all families should be clear from the outset both who is available to support them and what they can expect from the FAI process. This requires consistency and better liaison between all of those involved in the investigation of a death in custody. I therefore want to see a joined-up approach between Police Scotland and COPFS, that can be tailored to individual family needs.

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.

I am also convinced that families need clear and concise information about the overall purpose of an FAI and what an FAI involves, that they can refer to as and when they need. That leads me to conclude that all families should be given written information, in accessible language, at the earliest point.

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.

I know that changes have been made recently to the provision of legal aid for families and that commitments have been made to make further changes. It is my view that legal aid should be available to families from the day that their relative dies. This would be a step in the right direction, ensuring that families can be as involved as they wish to be from the outset of an investigation and that their questions and concerns can be addressed.

Recommendation 11

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

I acknowledge that this change will take time to implement, and since legal aid is currently available only from the point at which First Notice^[5] is issued, I want to see First Notices issued much earlier than they currently are. I consider that they should be issued within six months of the date of death. I deal in a later section with overall timings and delays, but the issuing of First Notices rapidly in order to unlock legal aid must happen as soon as possible. I acknowledge that this will present challenges across the system, but it is my view that it is the only way to begin the necessary work of bringing families more meaningfully into the process while legislative changes are made.

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.

It has also, however, become clear to me that legal aid can only go so far. At the beginning it may not be clear to a family why they would need the support and advice of a solicitor at all. What may happen in the months after a death in custody is complex. Information is scattered across different websites and services. Some of it is simply impossible to find and piece together. Those unfamiliar with the process or the justice system cannot be reasonably expected to know what questions to ask or what information to look for at the best of times. This is made even more difficult when those who need information are grieving.

For that reason, I want to see a single source of information and support being set up for families of those who have died in custody. In the interests of improving the situation quickly, I believe that all currently available information should be brought together in one place, that gaps in that information should be identified and addressed with the input of families and their representatives, and that eventually this is developed into an information and support service that actively supports families.

It is my understanding that support for families of those who have died in custody is being considered by the Scottish Government. Although my remit in carrying out this review is limited to the FAI process, I must urge those developing this service to consider the wider needs of families. They do not need to understand one process or aspect of what follows a death in custody. They need to understand, and be supported through, all of the possible processes that can follow a death in custody. Indeed, part of the challenge that families face currently is that information and support tends to be made available based on the discrete remits or responsibilities of those drafting the information. Instead, information and support should be approached from the point of view of families and all of the advice and support that they might need to access services and get the best out of processes like FAIs.

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.

It is also clear to me that improvements are required when communicating significant decisions or milestones in an FAI to families, such as decisions to conjoin inquiries^[6] or whether any criminality may have been involved in their relative’s death. Throughout the review I have heard that consistency is lacking, both in terms of what is communicated and when, but also in terms of appropriate empathy and whether information is given in a way that takes account of a family’s existing understanding of the FAI process.

It is therefore my view that, alongside the general information I have focused on above, COPFS should have clearer and more consistent protocols in place for communicating significant developments to families, building on what I have been told about the service overall taking a more trauma informed approach to interactions with the public.

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.

Preparation for an FAI

Once COPFS are in receipt of a report from Police Scotland or the PIRC (or eventually the new investigatory body, if it is established), then I consider that they should quickly be able to move to the initiation of an FAI itself. If an FAI is to satisfy Article 2 requirements and be a vehicle for avoiding future deaths, speed cannot be compromised by taking a risk averse approach to scoping the FAI investigation.

If, as it should be, the initial investigation into a death in prison or police custody is of sufficient quality, then there should be a reduced need for substantial additional investigation or the commission of further expert reports. I recognise, however, that between the report being made to COPFS and First Notice being lodged, COPFS requires to carry out its own investigation. I hope that implementation of Recommendation 4 supports this.

In considering how FAIs relating to deaths in custody are prepared, I conclude that great care should be taken over the use of joint minutes of agreement. I have heard that practice in relation to these can be inconsistent and has often moved away from the FAI rules of procedure^[7]. Families who are not participants can be astonished by how much has been agreed in advance of the FAI and may even disagree with the some of the contents of a joint minute.

I accept that joint minutes can be a valuable tool for managing uncontested facts and improving the efficiency of the court process. However, they appear to me to be being misused in FAI settings. I have heard examples of joint minutes being used where the evidence itself is contradictory. Evidence which is not wholly agreed by all parties and should be tested in court cannot be allowed to make its way into joint minutes. I note here that, whilst I hope that Legal Aid changes will lead to more meaningful family involvement in the process, which should in turn lead to the more inclusive and appropriate use of joint minutes, the Rules^[8] already stipulate that where any participant (such as a family, for example) is not represented, a joint minute must be approved by a Sheriff.

I believe that a reset relating to the practice of joint minutes is required, both in terms of what participants understand to be appropriate information to agree by way of a joint minute and what the Sheriff’s role is in considering them.

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.

The FAI

I have been particularly struck by the number of FAI experienced families who have a very negative view of the conduct of the Inquiry itself. ‘Brutal’ and ‘traumatising’ are terms I have heard repeatedly.

I have found it particularly striking that relatively small changes in this regard could lead immediately to a more humane, empathetic and sensitive approach. I have heard instances of families being unable to even hear what is going on in their relative’s FAI hearings. That is simply unacceptable. There is no excuse for families who wish to be involved to feel remote from proceedings in any way.

I have also heard that the stop/start nature of FAIs, where a family can have evidence heard over a number of days that are spread over weeks or months, is retraumatising in itself and incredibly difficult to manage alongside life’s normal commitments. For example, I have heard how families have had to juggle the FAI with school pick ups and drop offs, other caring responsibilities and work over several months, if not years.

I have heard how important the physical location of an FAI is, and how comfortable and appropriate settings can improve the experience. FAIs have been held in non-court settings in the past and some courts have created bespoke physical environments that are more supportive of a more empathetic Inquiry. In some cases, the ability to ‘attend’ hearings remotely has supported the involvement of participants who might find it challenging to travel.

My view is that the conduct of FAIs must change to reflect their intended inquisitorial nature, with the experience of grieving families at their centre. This touches on every aspect of the FAI: the physical location, the scheduling, the conduct of the Inquiry itself, and the outcomes (I discuss determinations separately, below). I do not believe that this will undermine the independent and robust nature of the investigation, but rather help to make the experience as sensitive and inclusive as possible, with FAI proceedings having full regard to the requirements of Article 2.

Crucially, the Sheriff conducting the FAI should take robust charge of proceedings to ensure that the inquisitorial nature of the FAI is maintained. I have heard examples of wholly inappropriate aggressive lines of questioning being directed at families. I have also heard examples of participants, rather than seeing an FAI as an opportunity to learn, attempting to pass the buck and reflexively deflect blame, in some cases onto families themselves. On other occasions the FAI is used as an opportunity to score points or ‘rehearse’ for possible future civil proceedings. Public bodies, especially those under the direction of Ministers, must be reminded of their responsibilities and in particular to treat an FAI as an opportunity to improve practices. This aligns with wider legislative developments, across the UK, that reflect the expectation that those in public office will act with candour and openness.

That said, I have also had brought to my attention that some FAIs are conducted sensitively, efficiently and with one of their ultimate purposes, that of future prevention, at the forefront of proceedings. I therefore consider that there is nothing stopping this from happening across all FAIs, if good practice and knowledge is promulgated across the country. There are a variety of ways of achieving this, the most efficient of which I believe is to use existing and familiar routes such as training and a bench book^[9].

It may be that a national FAI Court is ultimately desirable, possibly sitting around Scotland as required, but I do not go so far as to recommend that at this point given that smaller, more readily achievable steps may be sufficient in the first instance to improve FAIs relating to deaths in custody. A national FAI Court may, however, be something that Scottish Ministers also wish to consider during the assessment in 2028.

I also do not go as far as to recommend that specialist Sheriffs hear FAIs (whether that were to be put on a statutory footing by way of existing powers, or informally in each Sheriffdom). However, this may well also be something that the Lord President wishes to consider at the end of the assessment in 2028.

I would also like to see Sheriffs who hear FAIs being imaginative in how they conduct them, keeping the purpose of such Inquiries at the forefront of their minds as they do so. If the main purposes of FAIs are to determine what the cause of death was and whether it could be prevented from happening again, then I think those hearing them should be able, and encouraged, to issue interim recommendations wherever quick action is needed.

I heard from families how holding an FAI in a court room in a Sheriff Court was often difficult for them and how non-court settings could help the proceedings feel more like an inquiry as opposed to a traditional court case, with opposing sides and all the formality that comes with that. I note that Lord Cullen had suggested ways in which this could be alleviated in his review of FAIs as far back as 2009. More can be done in this respect.

I observe that the bespoke FAI suite now available in Falkirk Sheriff Court, which I visited, is a welcome improvement. The development of this suite was driven by a need to accommodate large-scale FAIs within the Tayside, Central and Fife Sheriffdom without consistently needing to use, and pay for, an external venue. The new facilities include excellent audio-visual capabilities, including large display screens for the public gallery, a flexible layout to allow various numbers of representatives to participate and a dedicated family room. I consider all of this work represents a trauma informed approach to FAI practice and commend Sheriff Principal Wade and the Scottish Courts and Tribunal Service (SCTS) on its development.

I also commend the current practice I saw in some Sheriffdoms whereby SCTS and COPFS maintain regular contact about upcoming FAIs, with the Sheriffs Principal taking an early and active role in managing the scheduling of these to ensure the best use of court time and resources. This regular contact between organisations is clearly leading to more effective accommodation of FAIs within the court programme.

I would also like to see the formality of FAI proceedings being assessed by the judiciary, for example with regards to matters such as the wearing of gowns and wigs. I heard how these can often feel extremely formal to families and can add to the overall feeling that FAIs are just part and parcel of the normal adversarial judicial system.

Finally, I was impressed by some practices in the coronial system which humanise the inquiry process. For example, the Chief Coroner of England and Wales has drafted guidance on the use of ‘pen portraits^[10]’. Pen portraits are a way to personalise an inquiry process and commemorate the person who has died and can be in written or video format.

This can help the coroner and jury to know something of the person, such as what they did, their interests and hobbies and details of their circle of family and friends. It humanises the inquest, putting the family and their relative who has died at the heart of the process.

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.

Delays and time limits

I have concluded that a dramatic shortening of timescales is an essential step towards ensuring that the FAI process fully delivers Scotland’s duty under Article 2 of the ECHR by providing a prompt investigation into a death in custody. This will not only make the process much less traumatic for families, prison staff and police officers involved, it should also result in better quality information being brought to FAIs while memories are fresh.

I accept that shorter timescales may sometimes necessitate a change in the depth in which FAIs consider areas of concern and the solutions that might be deployed to address them. It is my view that, in order to conduct FAIs in a timeframe consistent with their purpose, robust investigation should be directed at identifying areas of concern. The detailed consideration of solutions, which will often involve expertise and potentially some testing or piloting of changes, can and should be removed from the FAI process if there is a robust mechanism for follow up (see section below on Follow up on recommendations).

I consider that a distinct advantage of the FAI system is that the Sheriff’s determination may not be used in any other judicial proceedings. It stands alone. I am therefore persuaded that the FAI should not wait for any other proceeding, such as criminal proceedings (noting how unusual prosecutions are following deaths in custody). Quite simply, there is a need to get on with it. The perfect cannot be allowed to be the enemy of the good. Or to put it another way, the FAI cannot wait for years whilst a prosecution is concluded or the possibility of one eliminated. Neither can it wait lengthy periods for experts to provide additional reports or views. Lengthy delays risk undermining one of the key purposes of an FAI: to identify and consider what steps (if any) might be taken to prevent other deaths in similar circumstances.

In relation to how timescales can be scrutinised, the existing framework for publishing information about the operation of FAIs themselves seems woefully inadequate. I have repeatedly heard that existing published information (such as the number of FAIs completed) does not allow for scrutiny of how the system is operating. It is clear to me that this amounts to a lack of transparency, which leads to a lack of accountability and a collapse in the trust that the public should have in FAIs.

I have recommended above that, as of July 2026, COPFS issue First Notices relating to deaths in custody within six months of the date of death, recognising that COPFS will depend on other organisations to achieve this. I consider that the PIRC and Police Scotland should each complete their investigation into a death in custody within three months of the date of death. I understand from the organisations that this should be achievable as this recommendation is wholly in line with the PIRC’s current practice.

I also consider that information as regards to whether this target is being met should be published regularly alongside, where relevant, an examination of common causes of delays.

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.

I know that some time limits within the justice system have become meaningless over time, as they are so rarely stuck to. Nevertheless, I believe that statutory time limits can send a signal to everyone working within the system that quick investigations are important and to show commitment to those who suffer the consequences of the current, wholly unacceptable, delays. For that reason I believe that the overall speed with which FAIs are completed should be assessed alongside the other impacts of the changes made over the next three years. If, at that stage, Scottish Ministers consider that FAIs are still taking too long, I recommend that statutory time limits be introduced.

It should, of course, be open to a presiding judicial officer at a First Notice or preliminary hearing to make whatever orders may be necessary or to recognise something wholly exceptional that might require some departure from these timescales.

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.

Determinations

Since Katie Allan and William Lindsay’s FAI determination^[11] was published in January of this year, and the commitment to hold this Review was announced, Sheriffs across Scotland have produced determinations that I have read with interest. I have also looked back at older determinations and ones that do not relate to deaths in custody, some of which have been brought to my attention as useful examples of particularly common practice, for which I am very grateful.

It is inevitable, given the different circumstances surrounding each death, that there will be differences in the length, areas of focus and findings in FAI determinations. I do consider, however, that there is also room for change and improvement if FAIs are to meet the expectation that they will lead to change and prevent future deaths.

It is my view that determinations should be drafted in such a way that they are accessible, humane and demonstrate empathy for those who are affected by the death under investigation. I consider that the practice of referring to crimes or sentences of the deceased should end, unless they are relevant to the way a person died. Determinations should refer to a person by name rather than referring to ‘the deceased’.

Determinations must also stand alone, as they are the sole publicly accessible record of the circumstances and consideration of an FAI. Referring to joint minutes or documentary evidence, without setting out the relevant information contained within these documents, undermines the reader’s ability to understand fully the issues that have been considered in the course of the FAI.

It is clear to me that there is excellent practice in the production of many determinations. In joint FAI determinations, for example, I have seen strong examples of Sheriffs drawing out complex, salient issues well. In making recommendations, I have seen examples of clarity in the recommendations themselves, in their reasoning and in the discussion. I truly believe that if determinations are written so that organisations, families and the public can follow these arguments and understand what lies behind a recommendation, finding or, indeed, absence of a finding or recommendation, taking action and addressing failings will become easier. That said, if the determination takes many months or years to be issued after a death in custody, no amount of clarity will prevent avoidable deaths. As with all other stages of the FAI process, the issuing of determinations must be accelerated in order to prevent further avoidable deaths.

I have heard concerns about FAIs where assurances have been given to a Sheriff that a subject matter or potential recommendation has already been dealt with. In such circumstances, I can readily understand why a Sheriff is not inclined to make a recommendation. However, it appears that statements made to the Court about improvements made are not always accurate, or if they are, the improvements made are not replicated throughout the prison estate. Simply put changes made between a death and an FAI hearing are not visible enough and families, in particular, believe there is no accountability without transparency. In the next section I recommend more robust follow up to determinations, but in relation to this point specifically I would like to see FAI determinations include a very clear reference to any changes that have already been made so that Sheriffs in different jurisdictions are aware of and take action to track those changes and the impact they are having (or not as the case may be).

In conclusion, I believe that FAI determinations can and should be written in a way that is clear and accessible. FAI determinations must wholly comply with Article 2 requirements, be complete in themselves and tell the story of the death, the evidence heard, and the proceedings in full to anybody who wishes to read them. I have no doubt that the knowledge and expertise for writing such determinations exists across Scotland. I therefore consider that, to improve determinations across the country, best practice must be shared and followed across every FAI. This will require training and information, available to all Sheriffs who conduct them.

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.

Follow up on recommendations

Throughout my Review I have consistently heard that there is no meaningful follow up to FAIs and their recommendations and findings in Scotland. Many people I have spoken to feel that there is no accountability in the system at all, given that information relating to action taken is impossible to find, and that there is no independent scrutiny of what has or has not been done.

I am aware that the Scottish Government is developing a National Oversight Mechanism (NOM) to ensure that FAI recommendations are followed through to deliver system wide change. This work has run in parallel to my Review and, as I understand it, has not yet concluded. I am however persuaded that such a mechanism is critical to ensuring that the FAI system overall leads to meaningful change. I have therefore set out what I believe such an oversight mechanism should be and do. In doing so I acknowledge again that some aspects of this will be possible to implement quickly, and others less so. I therefore consider that progress should be considered in the assessment in 2028 and further action determined as a result.

This body must be set up in such a way that it is independent of the judiciary, in order to ensure separation between the inquisitorial and judicial roles of the Sheriff and the scrutiny and implementation role necessary to give effect to determinations. Having an entirely separate implementation body in place in this way should free Sheriffs to be quicker and more flexible in making recommendations to prevent future deaths. This body must also be wholly independent of those most likely to be expected to take action as a result of death in custody FAI determinations, most obviously the SPS, Police Scotland, the NHS, and private contractors involved in operating prisons.

I believe that this new body should maintain an up to date, public and searchable database of FAI determinations, recommendations and findings. Consideration should be given to the strengths of existing models, such as the preventable deaths tracker^[12] created by Dr Georgia Richards of King’s College London. Transparency is key to creating more accountability and more confidence that the system is able to lead to meaningful change.

In my view however, this body should be doing more than simply tracking recommendations made in the FAI determinations, it should be:

• carrying out a critical assessment of all findings noted in death in custody FAI determinations, both formal recommendations and other findings
• considering the totality of those findings, and setting out what a reasonable course of action is as a result
• assessing emerging themes or trends of concern
• equipped and empowered to require reporting on action taken and to assess those reports, as well as being able to consider the impact of no action or delayed action
• able to assess whether alternative courses of action, taken by bodies subject to FAI recommendations, have addressed the matters identified satisfactorily
• have powers to ensure action is taken

Consideration could also be given to this body undertaking long-term analysis of the outcomes of findings and looking at best practice in other countries in order to add value to its assessment of those findings.

I believe it would be most productive if the team at the heart of this body was multi-disciplinary, encompassing at least knowledge of police and prison operations, and healthcare in custody settings. This is critical in order to be able to assess the totality of the FAI output on particular areas of operation and how best to effect meaningful change. I also consider that those setting up the body should consider how it could be supported by a wider advisory forum bringing in the perspective of those with lived experience relevant to the changes they are monitoring, for example bereaved families, prison or police officers, healthcare workers, and third sector organisations who support prisoners or their families.

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.

I acknowledge that it is very likely that the role of this body will interact significantly with the relevant Inspectorates, and hope that collaborative working relationships are established to ensure the best outcomes possible for those in custody in Scotland. I would also encourage such a body to establish constructive working relationships with comparable bodies in other parts of the UK, with a view to ensuring that best practice can be shared and adopted across the various UK jurisdictions.

It is clear to me that public scrutiny is almost entirely absent from the follow-up to FAI determinations, but that such scrutiny is a key aspect of making sure that change happens. I therefore conclude that this body should report annually to the Scottish Parliament. Such reporting should not, however, prevent it from publishing other information or ad hoc reports that the public may benefit from, for example more frequent publication of statistical information, or subject specific or thematic reports. Ultimately, this is about introducing some democratic accountability for action taken, or not taken, as a result of FAIs and in order to prevent future avoidable deaths.

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.

Other matters

Whilst not within the remit of my review I have heard evidence as to the necessity of including deaths in all forms of state custody within the categories of mandatory FAI, whether those are the deaths of children or of adults. I wholly agree with this view. I also see merit in considering the position of those who die shortly after leaving custody given the possible linkage to care in custody and preparation for release. Time did not allow my review to explore this issue in detail however.

All parties involved in the FAI process should commit to a far greater level of transparency through proactive publishing of information on working protocols and high-quality statistical data.