Family's fight for answers after prison death 'felt like torture'

The aunt of a man who died in prison has told the court deciding on compensation owed that trying to get answers since his death has been "torture".

Allan Marshall, 30, was on remand at HMP Edinburgh in March 2015 when he was restrained face down by up to 17 prison officers. He died four days later.

The case against the Scottish Prison Service (SPS), which has admitted his death was unlawful, is the first of its kind to come before a court in Scotland.

Marshall's aunt Sharon MacFadyen told the Court of Session in Edinburgh that she did not have words for how horrific the family's experience had been.

In a three-day hearing, Lady Ross is presiding over a legal proof about the level of damages owed from the SPS to Marshall's brother and aunt.

The court heard that Police Scotland and the Crown Office have already agreed to an amount of compensation.

The Scottish Prison Service admitted in September that Marshall's death was unlawful - 10 years on from the fatality.

His family has since received an apology from the prison service, Crown Office and Police Scotland after the Court of Session heard that the level of force went beyond what was necessary.

It was the first time that all three parties publicly apologised, accepted it as an unlawful death and accepted that the state failed to adequately investigate.

McFadyen told the court that the family's fight over the past decade had felt "never ending".

"It is like being tortured over and over again," she said. "It is horrible, I don't even know how to put it into words.

"It is torture. It is exhausting."

Kenneth McBrearty KC, representing the family, said they were seeking £100,000 from SPS as a "just and equitable" sum given the circumstances of the case.

The court case is Scotland's first using article two of the Human Rights Act 1998 - breach of the right to life.

While it is the first time a Scottish court has been asked to decide how much the state should pay in damages for a breach of the right to life, it is also the first time a UK court has been asked to decide how much the state should pay for unlawfully causing someone's death in breach of article 2.

McBrearty said it was proper to regard his death as "entirely unnecessary" and "what ensued from his death was an 11-year fight for justice" by his aunt and brother.

He said Macfadyen was more like a mother to Allan than an aunt.

Marshall's brother Alistair was also in court. He testified that as he was watching his brother in hospital it "felt like my life was dying as well".

Marshall, from Carluke in South Lanarkshire, was on remand for unpaid fines and breach of the peace charges when he experienced a mental health crisis.

He was transferred to HMP Edinburgh's segregation unit after prison officers said he had become agitated.

CCTV showed Marshall, who had an underlying heart condition, being dragged and restrained by up to 17 prison officers - some of whom used their feet.

An earlier court hearing was told there was "never any need" for force to be used on Marshall and that he should have received medical attention instead.

It also heard that plastic cuffs were used and the "extent of force was plainly excessive and beyond what was necessary".

An unpublished Crown Office review seen by BBC Scotland in 2024 said a decision not to prosecute the prison officers, made two months after Marshall's death, was "incorrect".

The Crown Office said it had undertaken "significant reforms" since Marshall's case and that bereaved families "can expect investigations to be pursued with the vigour and expertise they deserve".

McFadyen and Alistair Marshall joined other bereaved families to meet First Minister John Swinney in December, calling for the mandatory implementation of recommendations from fatal accident inquiries.

At the time, Swinney said he expressed his sympathy for their loss and said he would set out to families the "steps we're taking to implement the fatal accident inquiry recommendations that are relevant".

A spokesperson for the Scottish government said: "Our thoughts remain with Allan Marshall's family and the Scottish government apologises for the failures that led to Allan's death.

"The ongoing legal proceedings mean it is inappropriate to comment."