THE handling of deaths in custody in Scotland is in breach of European human rights laws, a group of experts have said.

An independent review by HM Inspectorate of Prisons For Scotland, the Scottish Human Rights Commission and the Families Outside charity says that the official responses to deaths in prison custody in Scotland is "letting families down" and fails to provide bereaved relatives with a voice.

But it has emerged that they have further raised serious concerns that current processes and practices "did not meet the key tests set out in human rights legislation for investigations namely that they should be independent, adequate, prompt, open to public scrutiny and involve the next of kin".

Scotland has the highest rate of imprisonment and highest death rate in prisons across the UK.

From January 2019 until the end of 2020 there were 71 deaths in prisons in Scotland.

There have been 22 ‘natural sudden’ deaths, 18 suicides, 13 natural expected deaths, 10 undetermined, drug-related deaths and one homicide.

Nearly one in three deaths take place within the first six months of an individual’s sentence.

Past research shows that those on remand are especially vulnerable to being at risk of suicide. Scotland has the highest mortality rate per 10,000 in the UK, at 47.6, compared to England and Wales, which is 39.5.

The concerns raised in the Independent Review of the Response to Deaths in Prison Custody follows two years of research, analysis and engagement with families affected by deaths in custody, as well as prison and NHS staff.

The report recommends a wide-ranging set of "systemic, practical and compassionate" changes to radically improve how deaths in prison custody are responded to in Scotland.

The review's key recommendation is that an independent body should carry out a separate independent investigation into every death in prison custody and states that it "must have regard to applicable human rights standards".

It pointed out that there is a European Convention of Human Rights requirement to ensure those involved in the investigation of such loss of life are sufficiently independent of the events, in terms of institutional connection and practically.

The groups point out that the chairman of the Death in Prison Learning, Audit & Review (DIPLAR) process into deaths in custody is a non-executive member of the Scottish Prison Service Board so there is an "institutional connection which undermines the independence of the process".

The group say that a "truly independent" chairman should be appointed to ensure consistency of approach and oversight.

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It said all prison death investigations hould be carried out by a body "wholly independent" of the Scottish Ministers, the Scottish Prison Service (SPS) or private prison operator, and the NHS.

They found that DIPLAR reports, which act as the first stage of any death in custody, are not in the public domain but in the review guidance they are referred to as public documents.

The body’s functions and remit – including the timescales for investigations, the parties that must be involved and related complaints and appeals processes – should be set out in statute and "explicitly linked to human rights standards".

To ensure independence and facilitate maximum accountability and oversight, the body tasked with carrying out investigations should be accountable to the Scottish Parliament.

Scotland is subject to a number of international standards and review processes, including the European Convention on Human Rights and the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules 2015).

The analysis reveals that case law shows that investigations into deaths in custody should be "independent, prompt and for the next of kin" to have an opportunity to participate.

"These standards are not guidelines and not something Scotland could consider but legally must adhere to," the study states.

Fatal Accident Inquiries are the main independent process of review but currently take around two years from the point of death and in some cases much longer because of delays, "seriously undermining" its value.

The report found that in contrast to Scotland, in England and Wales the investigations are truly independent, carried out by the Coroner and Prisons and Probation Ombudsman (PPO).

The report says that any independent investigation should be instigated as soon as possible after the death and be completed within a matter of months.

Having found that contact with families of people who die in custody by the SPS "is minimal", it says the investigation process must involve the families or next of kin at every stage.

It also states that investigations should also be completed faster and that any independent body should be tasked in law with the duty to monitor and report on the implementation of its recommendations.

Families of next of kin of those who have died in custody should have access to full non-means-tested legal aid funding for specialist representation throughout the process of any investigation, following a death in custody, including at any FAI.

The review co-chaired by Wendy Sinclair-Gieben, Her Majesty’s Chief Inspector of Prisons for Scotland, Professor Nancy Loucks, chief executive of the charity Families Outside, and Judith Robertson, chairman of the Scottish Human Rights Commission was commissioned by the then justice secretary Humza Yousaf in November 2019.

Ms Robertson said: “Deaths in custody need to be seen through the prism of Scotland’s human rights obligations, in particular the right to life provided for in Article 2 of the European Convention on Human Rights (ECHR). The state has the duty to protect the right to life effectively, and, when someone dies in custody, a duty to provide an explanation of the cause of death.

“The Review used human rights legal standards to frame our analysis and recommendations, and a human rights based approach to guide our work where possible. This included ensuring that the voices of families, and others directly affected, were heard and listened to in making recommendations.”

A separate study of almost 200 fatal accident inquiries into deaths in custody found the sheriff made no recommendation to improve practice in 90% of cases.

Academics at Glasgow University looked at 196 deaths in prisons covering almost 15 years from 2005 to 2019 and found that FAIs often took three or four years to complete but in most cases found no action that would have led to a different outcome.

The team behind the analysis said the sheriff had the power to make findings on whether there were any defects in any system that resulted in the death and on whether any reasonable precautions could have prevented it.

Families could take an action should they feel that the prison system has breached its duty in relation to ECHR. To date there have been no judicial reviews taken by families in relation to the SPS and deaths in custody.

Asha Anderson, a member of the Family Advisory Group of people bereaved by the death of a family member in custody which advised the review said: "Each person deserves basic human rights; in my eyes the SPS and NHS are failing on this and I urge them to take accountability and make these changes."

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Ms Anderson was forced to fight for answers when her younger brother Pradeep Bhowmick died at HMP Shotts in 2017. The cause of the 32-year-old’s death has never been established.

“The whole process around a death in custody needs to be looked at; there is no consistency and in my view no support for families. As a family member I feel my brother has been let down and our whole circle of family and friends have been let down, which makes me more determined to push for these recommendations to protect the basic human rights of people in prison.”

An SPS spokesman said: "The review makes a key recommendation that a separate independent investigation should be undertaken into each death in prison custody. We recognise the profound emotional distress experienced by families when a loved one dies in custody and anything that can be done to provide information and engage with families is to be welcomed.

"All deaths in custody are subject to a Fatal Accident Inquiry (FAI). The timings of such inquiries are out with our control but we recognise that getting answers to their questions more quickly is likely to be of significant assistance to families.

"There are a number of observations within the report regarding current policies and procedures, family contact and support for staff. We will give urgent consideration to all recommendations and implement as appropriate.”