The head of Scotland's jails has told the families of two young people who took their own lives in prison that she believes crown immunity should be abolished.
Theresa Medhurst said the Scottish Prison Service (SPS) should face the possibility of criminal prosecution over deaths in custody.
Ms Medhurst made the comment during a meeting with the families of Katie Allan and William Brown, also known as William Lindsay, who both died by suicide at Polmont Young Offender's Institution in 2018.
Under the law, the Crown, which includes the Scottish Prison Service, cannot be held criminally responsible for deaths in custody.
The Scottish government said it has pursued a change in the law, but that it would require UK government approval.
Last year a fatal accident inquiry (FAI) into the deaths of Katie Allan, 21, and William Brown, 16, made 25 recommendations , which were accepted by the SPS and Scottish government.
The family’s attorney, Aamer Anwar, stated that the “stern and distressing” meeting with Ms. Medhurst on Wednesday was both challenging and emotionally taxing.
Nevertheless, he emphasized that it was crucial Ms Medhurst had consented to abolishing crown immunity for the prison service.
In 2022, the The Crown Office determined that a violation of the Health and Safety Act at the prison significantly contributed to the fatalities. However, it couldn't intervene because the SPS was shielded by the principle of crown immunity.
Mr Anwar stated that the families will attempt to arrange a meeting with Prime Minister Sir Keir Starmer to advocate further for legal reform.
He stated: "In cases where the SPS aligns with removing Crown immunity, and both the Scottish government and all opposition parties in the Scottish Parliament support this removal, the key issue becomes whether the UK government will follow through."
He stated: “The upcoming step for these families, as well as several others whom we represent, involves having a discussion with Keir Starmer and the justice minister, since they hold the authority to make this happen.”
Clearly, there is solidarity throughout Scotland, encompassing all institutions along with families, aimed at abolishing Crown immunity. This situation is deemed unacceptable.
What is Crown immunity?
The doctrine of crown immunity asserts that laws generally do not bind the government unless explicitly stated.
In essence, this implies that the state, encompassing governmental organizations and official entities like the prison service, along with certain times its staff or representatives, may receive protection against prosecution for crimes established through legislation.
If someone passes away while being detained in a jail, the Crown cannot be deemed criminally liable for the deceased individual’s death.
It does not protect them from civil liabilities, such as the The lawsuit filed by Allan Marshall's family was due to his death following restraint by as many as 17 prison officers. At HMP Edinburgh in 2010.
In Scotland, Crown immunity might not shield prison officers or officials – for instance, if they get involved with a "personal communication device" like a mobile phone, whether by using, possessing, or providing one to an inmate.
A clause within the Health and Safety at Work Act asserts that even when Crown Immunity is applicable, an individual may still face prosecution if they are responsible for causing a violation.
Campaigners have long challenged the law, arguing that the public and private sectors do not operate on a level playing field.
'We didn't feel demonised'
Ms Allan's mother, Linda, said the meeting was "very positive," adding it was the "beginning of a dialogue" with the SPS.
She said: "For the first time we didn't feel demonised by the prison service , but we felt listened to, and we found that very restorative."
Speaking after the meeting, Ms Medhurst said: "This was just an opportunity to meet personally with the families, to offer our apologies for their loss, the tragic loss of Katie and William, and to apologise for the failures of the past.
"And to ensure that they understand we are committed and determined to not only action the recommendations that we have accepted in full, but to ensure that there is systemic change across the organisation, which will be impactful and lasting."
The families met the Scottish government's justice secretary, Angela Constance, at Holyrood ahead of a statement to parliament last week.
A representative from the Ministry of Justice stated: "The Lord Chancellor has been sent the letter from the Scottish cabinet secretary for justice and home affairs and will provide a response at an appropriate time."
A Scottish government spokesperson added: "The Scottish government will continue to pursue the lifting of the SPS corporate Crown immunity under reserved health and safety law with the UK government.
"All of the recommendations in his determination of the FAI into the deaths at Polmont YOI of Katie and William have been accepted and the work on these is being delivered at pace with progress closely monitored."
- Safety action plan accepted after suicides at Polmont
- List of mistakes resulted in young inmates' fatalities