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Background

In November 2019, the Cabinet Secretary for Justice, Humza Yousef announced that he had asked HM Chief Inspector of Prisons for Scotland (HMCIPS), Wendy Sinclair-Gieben, in accordance with section 7(2)(d) of the Prisons (Scotland) Act 1989, to undertake an independent review into the response to deaths in prison custody.

The Review was instructed to enable the identification of and to make recommendations for areas for improvement to ensure appropriate and transparent arrangements are in place in the immediate aftermath of deaths in custody within Scottish prisons, including deaths of prisoners whilst in NHS care.

It was later announced that Professor Nancy Loucks OBE, Chief Executive of Families Outside, and Judith Robertson, Chair of the Scottish Human Rights Commission, would join Wendy Sinclair Gieben as co-Chairs of the review. 

Families Outside is providing external expertise to inform the views of support for families and the Commission is conducting a comprehensive analysis of the relevant human rights legal standards, at both the European and international levels. Both co-Chairs are also working across the other work streams that are part of the Review.

Read the Terms of Reference for the Independent Review into the Response to Deaths in Prison Custody. 

Activities to date

Preliminary work for the Review began in February 2020 and, despite some delays due to COVID-19, the Review has moved forward. The Review had nine work strands. Many of those are now in the final stages, while others are still underway:

Literature Review: A draft literature review is complete and informed subsequent steps.

Human Rights Analysis Framework: A draft Framework is being reviewed and provides the underpinning principles and the benchmarking for the remainder of the research.

Examination of the arrangements, policies, training and operational procedures in place within the SPS and NHS relevant to deaths in custody: All requested SPS and NHS relevant documentation is being gathered and distributed. The Review Team researchers will be analysing it against the human rights standards in the Human Rights Analysis Framework.

Examination of the arrangements in response to a death in custody, including current processes within the SPS and NHS for the immediate Critical Incident Response and Support (CIRS) process and the subsequent joint Deaths in Prisons Learning, Audit and Review (DIPLAR) process, as well as the previous Self-Inflicted Death in Custody: This was deferred until the Human Rights Analysis Framework had been drafted to allow analysis against human rights standards. This is now in draft and is awaiting the outcome of the DIPLAR/FAI comparison. 

Examination of the consistency and differences between previous FAI determinations and recommendations and learning arising from the DIPLAR process: This piece of work required the Human Rights Analysis Framework, information from the SPS, and the recruitment of additional research capacity to complete, and is underway. The SPS has released 40 DIPLARs and we anticipate the remaining DIPLARS will be with the review team by the end of March 2021. 

Family engagement: This work is almost complete. Some of the families who have agreed to take part in the review have also agreed to become part of a review advisory panel, which has been meeting monthly to inform the Review. The Review team would like to thank everyone for their enthusiastic participation. All three organisations are using social media routes to encourage families of prisoners to engage with the review. In addition, the Review Team have advertised on social media and their respective websites inviting family participation.

Staff engagement: Staff engagement is underway, including with NHS staff and SPS senior management. 

Seeking the views of expert witnesses: Phil Wheatley, retired Director General from the National Offender Management Service (now HMPPS) in England and Wales, has completed an expert review.

Key justice partners have agreed to contribute to the Review, and the Inspector of Prosecutions element has been submitted. 

Family engagement

The Review co-Chairs believe that the experiences and views of families who have been affected by deaths in custody should be first and foremost in informing the work of the Review and its recommendations. Work to engage with families included interviews with affected families to gain their perspective on how deaths in custody are responded to, whether more could be done to support families affected by a death in custody, and the families’ views on preventing a death in custody.  

On behalf of Families Outside, the Crown Office wrote to families who have been involved in a Fatal Accident Inquiry regarding a death in prison custody since 2018.  Read the letter here

23 people from 17 families – a quarter of those who had been through a Fatal Accident Inquiry in the relevant time period, plus one family that had not yet been through an FAI - came forward to take part in the Review. 12 people from 8 of these families agreed to participate in the Family Advisory Group, with family members acting as Chair and Vice-Chair. 10 of these people (7 families) have met monthly to share their views and to inform the work of the Review.