Corporate homicide investigation into Scottish Prison Service ‘reminder’ to others

It comes after Scotland’s prosecution service ordered Police Scotland to examine whether the SPS has corporate responsibility for the 2015 death of Allan Marshall. The 30-year-old died after being restrained, face down, by 13 prison officers at HMP Edinburgh. A fatal accident inquiry held in 2018 later concluded that the death of Marshall, who was scheduled to be released just five days after the incident, had been “entirely preventable”. It also described the officers involved as “mutually dishonest”.

Charlotte O’Kane of Pinsent Masons said the investigation should remind organisations in Scotland that charges under the 2007 Corporate Manslaughter and Corporate Homicide (CMCH) Act are “still very much on the radar of the Crown Office and Procurator Fiscal”. She added that any prosecution for corporate homicide, the equivalent of manslaughter in England and Wales, that followed the police investigation would be unprecedented in Scotland - and reinforce the fact that large organisations can be prosecuted under the CMCH Act.

“This prosecution, if it goes ahead, would be the first prosecution for the offence of corporate homicide in Scotland since the CMCH Act came into force in April 2008. To date, there have only been 32 successful prosecutions under the Act – a number that is significantly lower than many initially expected,” O’Kane said.

She added: “Most of the successful prosecutions have been raised against small to medium sized companies. There has not, so far, been a single successful prosecution of a public body; one attempted prosecution of an NHS Trust resulted in acquittals for both the Trust and one of its doctors.”

The investigation into possible corporate homicide comes after the SPS officers involved in restraining Marshall were granted immunity from prosecution in return for giving evidence to the 2018 fatal accident inquiry. Lord advocate Dorothy Bain KC, the chief public prosecutor for Scotland since 2021, apologised to Marshall’s family, but said the previous decision not to prosecute individual prison officers was irreversible.

A spokesperson for the Crown Office and Procurator Fiscal said it had “learned lessons from this case” and “created a dedicated team to investigate deaths in custody”. They added: “The new team brings together specialisms across homicide, sudden fatality, and health and safety investigations.” A Scottish Prison Service spokesperson said: “Our thoughts remain with Mr Marshall’s family. We will cooperate with any investigation undertaken by Police Scotland.”