Family members of those who die in custody will now have immediate, free access to legal aid during Fatal Accident Inquiries (FAI), removing financial barriers in their pursuit of justice. The Scottish government has confirmed that means-testing will no longer be required for legal aid in these cases, effective from April 7.
Immediate Legal Aid Without Means Testing
Justice Secretary Angela Constance announced the change, emphasizing the importance of ensuring families are supported. Normally, legislative changes of this nature require primary legislation, which can take time. However, Constance has used her existing ministerial powers to implement the reform without delay.
From April 7, families will not need to provide details of their income to access legal assistance. This move follows recommendations made after the inquiry into the 2018 deaths of William Brown, 16, and Katie Allan, 21, at Polmont Young Offenders Institution.
Findings and Recommendations After Polmont Deaths
A sheriff’s inquiry in January found that the deaths of Brown and Allan were preventable, attributing them to significant failures in the system. The final report made 25 recommendations, all of which have been accepted by the Scottish government. Officials have pledged to implement them “at pace,” with close monitoring to ensure compliance.
Several key measures are being introduced, including:
- A taskforce chaired by the Scottish Prison Service (SPS) chief executive, working with NHS partners, to oversee implementation.
- An independent review led by His Majesty’s Chief Inspector of Prisons for Scotland, with an initial report expected this summer.
- A complete overhaul of the SPS Suicide Prevention Strategy, “Talk to Me,” which will be published later this year, with full staff training in 2026.
- A comprehensive review of the FAI system, aimed at making investigations more efficient and trauma-informed.
Constance acknowledged the distress experienced by the families of Brown and Allan, stating, “It is through ongoing and decisive action that we will create the lasting change they rightly demand and deserve.”
Legal Aid Still Has Limitations
While the removal of means-testing has been welcomed, some argue that the provision does not go far enough. Currently, free legal aid will only be available 42 days before an FAI, rather than covering the entire legal process, which can stretch over several years.
Aamer Anwar, the lawyer representing the families of Allan and Brown, described the development as a “step in the right direction.” However, he emphasized that legal aid must be available from “day one” to prevent families from being outmatched by “an army of state lawyers.”
Scottish Conservative justice spokesperson Liam Kerr was also critical, calling the inquiry’s findings in January a damning indictment of a “broken system.” He stated that legal aid reforms must be matched by increased funding to ensure all families can access representation without delays.
The Circumstances of William Brown and Katie Allan’s Deaths
Sheriff Collins, who led the inquiry, found that Brown and Allan had both been failed by the institutions responsible for their welfare. His conclusions painted a stark picture of systemic negligence.
William Brown’s Case
- Brown, who had a history of attempted suicide, was taken off observations the morning after he arrived at Polmont.
- His cell was not made suicide-proof, despite known safety concerns.
- He had been remanded in custody after walking into a Glasgow police station carrying a knife, deemed a “potential risk to public safety.”
- There was no space available in a children’s secure unit, leading to his placement in an adult prison setting.
Katie Allan’s Case
- Allan, a Glasgow University student, was serving a 16-month sentence for drink driving and a hit-and-run.
- The sheriff found that multiple failures by prison and healthcare staff led to a failure in assessing and managing her risk.
- Her death was deemed spontaneous and unpredictable, but her cell could have been made safer at little cost.
- The Scottish Prison Service had been aware of the safety issue in her cell for a long time but had not addressed it.
What’s Next for Legal Reforms?
The Scottish government has committed to further reviewing the legal aid system to address long-term concerns. The independent review of the FAI process is expected to recommend additional reforms aimed at reducing delays and improving support for affected families.
Justice Secretary Constance reiterated her commitment to systemic change, stating, “We will continue to drive forward change and strengthen accountability. This is about changing the system and the culture that underpins it.”
While these steps represent progress, campaigners argue that full justice for families requires further legislative action to ensure comprehensive legal support from the outset of the process.
