Fatal Accident Inquiries: follow up review

Chapter 8 – Deaths of Young People In Custody

162. Following the tragic deaths of two young people in custody at HMYOI Polmont in 2018, the Cabinet Secretary for Justice commissioned an independent expert review of mental health and well-being services for young people in custody. The review was conducted by HM Chief Inspector of Prisons and published in May 2019.^[62] An action group, including relevant officials from across the Scottish Government, SPS and NHS, has been established to oversee progress across the recommendations.

163. In addition, we were asked to consider, as part of the follow-up report on FAIs, the merits of prioritising the investigation following the death in custody of a young person and, where appropriate, to establish whether there is scope within the current system to prioritise this category of case.

164. We identified eight cases over the last five years involving the death of a young person – aged under 21 years – while in custody. There are four cases where a mandatory FAI has still to be conducted and four cases where a mandatory FAI has been concluded, two of which fell within our case review sample.

165. In seven, the young person had or appears to have committed suicide. The other death involved apparent drug intoxication and occurred whilst in police custody. No standard prosecution report (SPR) was submitted to COPFS. The circumstances are very different to the other deaths which all occurred in prison or in a HMYOI and where a SPR had been submitted.

Why the Young People were in Custody

166. Three of the seven young people reported to COPFS were on remand at the time of their death, the remaining four were either serving a sentence or were awaiting sentence having pled guilty.

167. Four had been prosecuted under solemn procedure and three under summary procedure. The offences for two of those prosecuted under summary procedure involved the use of weapons.

Provision of Information

168. In six of the seven cases it was clear from the subsequent death report that the young person had vulnerabilities either due to Adverse Childhood Experiences (ACEs),^[63] family background or a history of mental health difficulties and/or self-harming. All six had been a looked after child at some time and for five there was a documented history of mental health problems. In the remaining case such vulnerabilities were not evident. Despite this, only one SPR submitted by the police provided information relating to the family background, ACEs and vulnerabilities of the young person.

169. Of note, in one case involving an extremely vulnerable young person who had an extensive history of self-harming and involvement with mental health services, although there was no such background information provided in the SPR, an earlier SPR had contained this information indicating a lack of consistency in the information provided by the police.

170. The lack of information accords with our findings in the thematic report on the Prosecution of Young People^[64] where we recommended that COPFS should liaise with Police Scotland to standardise the provision of information on any known vulnerabilities or family circumstances that may have a bearing on the appropriate prosecutorial action. In addition to informing the appropriate action in each case, as an officer of the court, the procurator fiscal has a responsibility to make the court and prison authorities aware of any known vulnerabilities for risk assessment purposes.

Delay/Time taken

171. We examined the time taken in the eight cases.

172. In the four cases where an FAI was concluded the average time between date of death and the first notice was two years and four months and between date of death and the FAI two years and nine months.

173. All four took longer than 12 months from date of death to lodging the first notice. We examined these cases to ascertain the reasons for the time taken:

• In one there were significant delays in the police or other agencies providing additional information, documentation or statements requested. This was compounded by time taken to explore and obtain expert reports. There was evidence it had not been possible to progress this case more quickly due to workload.
• In one there were difficulties obtaining a statement from an essential witness and delays in instructing additional inquires to address concerns raised by nearest relatives. A number of preliminary hearings were also necessary before the FAI commenced.
• In one there was significant delay obtaining the necessary statements by the procurator fiscal. Thereafter extensive and legitimate investigations had to be conducted into an allegation, subsequently established to be unfounded, that prison officers had conducted an inappropriate interview with the young person prior to his death.
• In one a period of time was taken to consider whether it was appropriate to conjoin the FAI with the death of another young person that were closely connected in time although ultimately it was determined that the circumstances were too different.

174. In three cases the FAI has yet to commence although in one dates have been identified. The average time between the date of death to the present date^[65] for each case is 14 months, 10 months and two years and six months. In the remaining case which involved apparent drug intoxication, the time between the date of death to present date^[66] is just over five years.

175. We have found that SFIU teams often delay commencing the FAI until all other inquiries undertaken by SPS and other bodies are completed resulting in delays between the death and the FAI. Whilst it is paramount that investigations into such deaths are thorough they should also be concluded as expeditiously as possible. Where there is a long delay the FAI is often advised that measures specific to the circumstances of the death have been implemented, resulting in few recommendations. Such an approach risks devaluing the purpose of the FAI and has been criticised by the judiciary. In relation to an inquiry where over four and a half years had elapsed since the death, the sheriff stated:

"The effectiveness of holding an inquiry must be questioned, evidenced in this case where no recommendations are made, not because there were no defects or precautions that could have been taken, but because necessary changes have already been made by those involved. This does not even begin to take into account the distress which in many cases will be occasioned to families in re-opening the circumstances around the painful loss of a loved one so long after the event."^[67]

176. The FAI should be the primary forum to explore the circumstances of the death, while it is fresh in the minds of all those involved, and not a vehicle to summarise outcomes of other reports.

177. Provisions introduced by the 2016 Act provides that any recommendations directed to a person or body or organisation have to respond to advise what action they are taking or provide reasons where they are not taking action, providing an element of accountability.

178. With that in mind it is essential that SFIU ensures such deaths are investigated both thoroughly and expeditiously to reduce the likelihood of similar deaths recurring and applies a holistic approach when considering the merits of conjoining inquiries where similar themes are identified. While there may be subtle differences in issues/circumstances an FAI looking at the circumstances of more than one death could provide a more in-depth analysis of a variety of factors with a view to identifying precautions that may be taken to avoid similar deaths.

179. To expedite the investigation into such deaths, the proposed MoU with SPS and NHS to receive the all required documentation within a specified time period should be progressed as a priority, enabling the investigation to be progressed more quickly. The additional resource and the introduction of dedicated teams to deal solely with FAIs should also assist in reducing timelines.

Findings

180. It is extremely concerning that these young people have died whilst in the care of the state. While recognising it is not possible to eradicate the risk of self-harm and mental health issues that affect many young people and that it can be very difficult to identify those who might or intend to take their own life and prevent suicides, it must remain the aspiration.

181. The function of the FAI is to identify failings/defects and to make recommendations to prevent deaths recurring in similar circumstances. Any death where there are apparent defects or reasonable precautions that may prevent deaths in similar circumstances should be prioritised.

182. Due to the heightened sensitivities around the death of any young person who by their age alone are vulnerable and as seen in our cohort often have a number of other vulnerabilities, it is right to demand that when such deaths occur, whilst they are in the care of the state, that they should be prioritised and, if appropriate, conjoined to learn lessons and make recommendations to minimise the reoccurrence of deaths in similar circumstances.

183. It is also timely following the 2018 review by HM Chief Inspector of Prisons resulting in the introduction of new measures that the court maintains an oversight on the impact of measures dealing with the well-being of young people and adjudicates on whether there is scope for further improvements.

184. To fulfil this role, the inquiry must be held in relative proximity to the death and as such COPFS should aspire to ensure that the first notice is lodged within 12 months to comply with the new COPFS KPI. We recommend:

New Recommendation

SFIU should prioritise the FAI of any young person in legal custody.

185. For clarification, there are some deaths that are attributable to natural causes or may be the result of a tragic accident where the circumstances do not suggest any system issues. In such circumstances the FAI should be dealt with timeously but would not require to be prioritised over other death investigations.