The family of a man who died in custody after he was restrained by 17 officers will sue the Scottish Prison Service, police and Crown Office in a last resort attempt to hold authorities accountable for his death.
Allan Marshall, 30, from South Lanarkshire, died in 2015 after he was restrained for at least half an hour at HMP Edinburgh. The father-of-two, who had an underlying heart condition, died in hospital four days later. His cause of death was recorded as brain injury due to cardiac arrest during physical restraint.
Marshall’s aunt, Sharon MacFadyen, is bringing legal action against the Scottish Prison Service and others for breach of her nephew’s right to life under article 2 of the Equality and Human Rights Commission. This is one of the only remaining routes to secure accountability after Scotland’s Crown Office made what campaigners describe as the “extraordinary” decision to grant the prison officers lifelong immunity from prosecution.
If successful, the family’s claim will produce the first court ruling in Scotland that article 2 has been breached by a death in custody. The case comes amid ongoing concern about Scotland’s disproportionately high rates of deaths in custody and criticism of the inquiry system for delays and lack of enforcement powers.
A fatal accident inquiry held four years after his death heard that Marshall was on remand awaiting a court appearance on breach of the peace charges. After showing signs of mental distress, he was not offered any medical assessment but transferred to a segregation unit, at which point his behaviour became more agitated.
He was then restrained by a group of 17 officers, with some using their feet – which is not standard practice. CCTV shows Marshall being dragged face down by officers and kneeled on.
The 2019 inquiry ruled that his death had been “entirely preventable”.
An internal review, seen by the BBC’s Disclosure, subsequently found the decision to grant immunity to the officers involved to be “incorrect”, and further concluded that the police had not properly investigated his death.
MacFadyen, who is supported by other family members, including his brother, Alistair, said: “We’ve been fighting for justice for Allan for nine years. Allan was killed in prison when he needed medical support. No one has been held responsible for that. The system has failed Allan.”
Barbara Bolton, legal director at JustRight Scotland, who is working on the case, describes the action as the family’s “last chance for accountability”.
She said: “This case highlights the urgent need for transparency in deaths that occur in state custody. Research shows a troubling rise in these deaths, reflecting preventable issues within the prison system.”
Deborah Coles, of the charity Inquest, said the decision to give officers immunity was “extraordinary”.
She said: “This case should send shock waves through the Scottish government, police and Prison Service about the way they approach deaths in custody and how they are investigated.”
A Scottish Prison Service spokesperson said: “Our thoughts remain with Mr Marshall’s family. As this is subject to proceedings it would be inappropriate to comment further.”
In March, the lord advocate and head of the Crown Office, Dorothy Bain KC, instructed police to examine whether the Prison Service could face corporate homicide charges over the death.
A spokesperson for the Crown Office and Procurator Fiscal Service said: “The lord advocate instructed that Police Scotland investigate possible corporate responsibility by the Scottish Prison Service. COPFS is working closely with the police on this ongoing investigation and the family will continue to be kept updated on significant developments.”
A Police Scotland spokesperson said: “We have received instruction from the lord advocate to investigate possible corporate responsibility by the Scottish Prison Service. We are not able to comment further at this time due to the live nature of this investigation.”
