Ministers fail in attempt to delay grieving family's lawsuit against prison service

The Scottish Government has lost a legal battle to stop the family of a man who died after being restrained by up to 17 prison guards.

Allan Marshall died days after being held face down in custody at HMP Edinburgh in 2015.

In what is believed to be a unique legal incident in Scotland, his family brought a civil action under human rights law alleging a breach of his right to life.

A request to stay the proceedings for six months was rejected by Lord Sandison.

Mr Marshall's aunt, Sharon MacFadyen, brought a case against the Scottish Prison Service (SPS) alleging breach of the father of two children's rights under Article 2 of the European Convention on Human Rights.

The case also targets the Scottish police and the Crown Prosecution Service for failing in their duty to properly investigate Mr Marshall's death and bring those responsible to justice.

The government's lawyers argued that the case had to be postponed while Scottish police investigated the circumstances of Marshall's death.

They said this could lead to charges being brought against the Scottish Prison Service – an agency for whose operation ministers are responsible.

They argued that continuing the case would require the government to respond to potential criminal charges, potentially harming future criminal proceedings.

Lord Sandison pointed out that no one had been charged with a crime and that there was no indictment available for review.

He said there were some cases where “the prospect of criminal proceedings was so clear and their probable nature so obvious that the absence of an indictment, complaint or charge did not constitute an insurmountable obstacle” to delaying the proceedings.

The judge continued: “In this case, however, it remains entirely unclear whether the current investigation will produce sufficient evidence to support a prosecution in respect of a specific offence or, if it does, whether the second defence counsel considers it to be in the public interest for such a prosecution to proceed.”

He also said it was unclear when it would be known whether anyone would face charges as the “police investigation continues at a fairly leisurely pace”.

Lord Sandison said “speculation” was “not a sufficient basis for concluding that adherence to the normal timetable in these proceedings would create a real and concrete risk of prejudice to the effective prosecution of any crime which may or may not have been committed”.

According to the ruling, the family is seeking court orders declaring that the defendants acted unlawfully and demanding damages from them.

Mr Marshall, from Carluke in South Lanarkshire, was 30 when he died in custody while awaiting trial for unpaid fines and breach of the peace.

Officers said he became agitated, but instead of calling for medical help, they placed him in solitary confinement and physically restrained him by forcing him face down.

Although much of the restraint was captured on CCTV footage, no one was held accountable for what happened to Mr Marshall.

The prosecution granted full immunity to all prison officers at HMP Edinburgh and ruled out any prosecution.

Beginning of the year The BBC revealed A review by the Crown Office found that the decision to grant immunity was “wrong”.

The case will be heard in court in the near future.

If successful, this could result in a significant financial penalty for the PLC, the Crown Office and the Scottish Government.

When the lawsuit was filed, a Scottish Police spokeswoman said: “We have received instructions from the Lord Advocatus to investigate possible corporate liability on the part of the Scottish Prison Service.”

“As this is an ongoing investigation, we are unable to provide any further comment at this time.”

An SPS spokesman said: “Our thoughts are with Mr Marshall's family. As this is the subject of legal proceedings, it would be inappropriate to comment further.”

The Scottish Government also expressed its sincere condolences to the family, but declined to comment further.