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

Appendix C – Summary of Evidence

The Review has received written evidence from a varied, informed and insightful group of interested organisations and individuals, either through the online portal or directly. That evidence is summarised below.

Timing and delays

One of the key concerns highlighted in evidence to the Review is the timescales in which FAIs are conducted and concluded. Almost all submissions have raised or acknowledged timescales as an issue. This relates to not only the time that passes between a death and the FAI’s First Notice being lodged, but also to the FAI being brought to a hearing in Court.

First, many responses highlight that the delays in the FAI process mean that one of the key purposes of holding FAIs is not being met. Long delays mean that any recommendations to prevent further incidents are not identified or implemented at an appropriate pace. Simply put, if it takes years to identify a necessary change, more people may lose their lives before that change is made.

Secondly, a number of responses draw attention to the distress caused by the time it takes to complete an FAI. This is the case for bereaved families who can wait years to find out what happened to their relative. It can also be the case for witnesses, such as prison or police officers, or healthcare staff, who are then asked to remember or relive events from years before. In all cases, it is difficult for those involved to adjust or move forward when the FAI is yet to proceed.

Although most respondents recognised timescales as an issue, only some made suggestions as to how to address it. Statutory timescales are a suggested remedy in several submissions and there has been a suggestion that a fast track system for some FAIs (those that are considered more straightforward) would be beneficial.

It is worth noting that it is not only those who participate in FAIs who have concerns about timescales. The bodies most involved in carrying out or supporting FAIs are also concerned with the length of time they take to complete, and COPFS outlined that they are currently working with external bodies to try to reduce timescales, while also improving internal processes.

Families and other participants

There is a general consensus that clearer communication with families is necessary, as many feel that the process is not explained adequately. Written evidence from both Linda Allan and Corrie Spence demonstrates personal experience in relation to this, which is further supported by those who have experience as legal representatives in FAI cases such as Aamer Anwar, Aimee Doran and Anderson Strathern LLP. They have all reported that families and loved ones were not well informed in relation to the process, purpose or aims of FAIs.

It has been highlighted by the Association of Personal Injury Lawyers that this process has improved in recent years noting that the Victim Liaison Officer allocated by COPFS is particularly useful, but others feel more could be done. SHRC have emphasised the need for families to be made aware of their rights under Article 2 of the ECHR, which allows for participation in the investigation. This is supported by legal representatives who have suggested interim reports and better access to documents throughout could more meaningfully involve families and loved ones.

A more informative approach for those who are not familiar with the legal and judicial systems is suggested, including a single point of contact soon after death to explain processes, timelines and rights to representation. There have been suggestions regarding an independent body that would have the expertise and relevant training on how to communicate these rights to the families.

The way that families are treated throughout the FAI process is also a common concern. The experience is widely considered to be distressing and retraumatising for them. Prison staff who are called as witnesses, report feelings of distress and anxiety around FAIs. This has called attention to the need for a trauma informed approach to be adopted throughout the process. A trauma informed approach aims to use an understanding of how traumatic experiences such as death of a relative can impact people and introduces policies and procedures which create a trusting environment. It is finding a way for those involved to feel emotionally and physically safe whilst participating in the FAI and often reliving a traumatic experience.

While there have been no specific suggestions as to how a trauma informed approach should be embedded into FAI practice or policy, many responses draw attention to the fact that an FAI should be a fact-finding process and not blame finding. It is clear from the responses to the call for evidence, that many believe that practice has drifted away from this, both in terms both of how the FAI itself is conducted and also in the way that participants conduct themselves. It is generally agreed that both families and organisational staff can feel distress throughout the process. Accordingly, it is believed that if those in control of parts of the process had the appropriate support in place for participants, this would improve the experience for everyone involved. Moving away from the feeling of proceedings being adversarial or often aggressive would also be greatly beneficial for families and other participants.

Investigation and the FAI

Some have suggested that an independent body should carry out investigations into deaths in custody in advance of an FAI and that this would encourage transparency and increase public trust. This independent body would carry out the initial investigation before reporting to the COPFS, who would continue to bring the FAI itself to court. The organisation would be trained and specialise in death in custody investigation. Others have suggested that a specialised team of Procurator Fiscals should investigate from the outset.

Many responses highlight that challenges in obtaining documentation and other evidence can hamper and delay investigations. Although it has been highlighted that this has improved in recent years, difficulty appears to remain at all stages, leading to delays, and which can prove particularly challenging for legal representatives trying to appropriately advise families.

Another recurring theme in the submitted evidence is that the courts are not perceived to treat FAIs with a high enough degree of importance. FAIs are understood to be scheduled around general court business, leading to a disjointed approach where momentum is readily lost. Some believe that there should be specialist Sheriffs appointed with an interest in FAIs.

Some respondents are of the view that specialist FAI courts should be established. There is reference made to the room used in FAI for Katie Allan & William Lindsay in Falkirk Sheriff Court, suggesting that this facility is more appropriate than a ‘normal’ court. However, in the written submission provided by the Allan family, they stated that it was not necessarily a comfortable environment for them. There is an overall consensus from those who support a centralised courtroom that the physical environment makes a real difference to how an FAI is experienced by those who participate, and, in particular, families.

Whilst not all respondents agree on which approach to take, there is a general consensus that the way FAIs are currently heard in court is not adequate.

Follow up

Challenges experienced by those outwith the system have also been highlighted, both in understanding FAI outcomes and determinations. Responses set out that determinations, and the recommendations contained within them, are difficult to find and often hard to understand. Those who wish to understand the outcome of an FAI are therefore prevented from doing so easily. A standardised format for summarising issues and recommendations has been suggested for determination reports.

The evidence also suggests that there is insufficient enforcement of recommendations made in FAI determinations and that there is no system in place to track these and hold anyone accountable for lack of action. There is general consensus that some form of tracking system should be introduced to ensure that recommendations are collated and upheld and to encourage accountability, although views vary as to what that might involve. Suggestions such as annual reports to Parliament or a centralised database have been made.

Relevant to this point is the information provided by the Scottish Government in their response. They established a Ministerial Accountability Board after Katie and William’s FAIs, which is intended to be the single point of coordination, monitoring, and accountability for the implementation of the package of reforms required across stakeholders. This is time limited and, in the longer term, the Scottish Government plans to create a National Oversight Mechanism. This will be an independent body tasked with overseeing the outcomes of FAIs. The detail of the NOM’s remit and specific make up are still being thought through.

Other notable points

Timing, family experience, carrying out an FAI and follow up are all areas where there was a great deal of agreement across the evidence submitted to the review. The following issues were mentioned by a smaller number of respondents.

It appears to some that there is an incoherent approach regarding which deaths are followed by a mandatory FAI. For example, it is not currently mandatory for an FAI to be held if a child or young person dies whilst in care. On the other hand, it is currently mandatory for an FAI to be held in cases where a prisoner has died from natural causes in a health care establishment, for example a prisoner who had a known terminal illness. Some question whether that this necessary or a good use of resources (although it is worth noting that SHRC and the Sheriffs and Summary Sheriffs Association argue strongly that Article 2 requires such investigations).

Some consider that an evaluation of which deaths should trigger a mandatory FAI is necessary and would prevent further backlogs and possibly speed up the overall FAI process.

Furthermore, it is suggested that legal aid should be available for all FAIs, not just those relating to deaths in custody.

List of respondent organisations

Aamer Anwar & Company

Anderson Strathern LLP

Association of Personal Injury Lawyers

Crown Office and Procurator Fiscal Service

Police Investigation and Review Commissioner

Police Scotland

Scottish Government

Scottish Human Rights Commission

Scottish Police Federation

Scottish Prison Service

Sheriffs Principal

The Faculty of Advocates

The Law Society of Scotland

The Royal Society for the Prevention of Accidents

The Sheriffs’ and Summary Sheriffs’ Association

UK National Preventive Mechanism

Who Cares? Scotland