A lawyer representing the families of two young people who took their lives in custody has said it would be “unbelievable” if one was forced to withdraw from a fatal accident inquiry over not being able to access legal aid funds.
Katie Allan, 21, and William Lindsay, 16, took their own lives while at Polmont Young Offenders Institute in 2018.
Solicitor Aamer Anwar, acting on behalf of the families, said Katie’s parents Linda and Stuart had been informed their application for legal funding would be denied as they were over the threshold to be considered.
At a preliminary hearing at Falkirk Sheriff Court on Tuesday, Mr Anwar said the family would be unable to participate in the joint fatal accident inquiry (FAI) into the deaths if a change was not made.
He said he would be raising the issue directly with Justice Secretary Angela Constance due to the “injustice” that families cannot be automatically granted funding while prison officers, ministers and health boards can.
“It would be unfortunate if the family couldn’t be in this FAI after five years of relentlessly pushing for it,” he said.
In a press statement after the hearing, he told journalists: “At court today I raised with the Sheriff that it would be unbelievable that the only family in the Joint FAI not to be granted funding for representation were the family of Katie Allan.
“Katie’s parents have been relentless in the last five years in seeking the truth of what happened not just to Katie, but to every other young person who has taken their life at Polmont.”
“It is time that Scottish ministers intervene to end this injustice if the process of an FAI is to have any legitimacy in the eyes of the bereaved.”
The sheriff presiding over the inquiry also expressed concern at the prospect of Mr and Mrs Allan being unable to participate in the inquiry due to their legal aid application being rejected.
Speaking in court, Sheriff Simon Collins KC said: “From my point of view, I would find it extremely helpful if the family of Katie Allan was represented in this inquiry.
“It is more than appropriate that Katie Allan’s family would be represented. I cannot tell the legal aid board or ministers what to do but I can say that I very much hope that they will be able to enable Katie Allan’s family to be represented in this inquiry.”
Mr Anwar also repeated his call to First Minister Humza Yousaf to remove Crown Immunity, which means that the Scottish Prison Service cannot be prosecuted.
And he said the families were also disappointed to be told that the Health and Safety Executive (HSE) would not consider administering a Crown Censure.
A Crown Censure is the way in which HSE formally records the decision that, but for Crown immunity, the evidence of a Crown body’s failure to comply with health and safety law would have been sufficient to provide a realistic prospect of securing a conviction.
Mr Anwar said: “It is time that the First Minister Humza Yousaf moved to remove Crown Immunity – it is archaic that in a civilised society, the Scottish Prison Service is not accountable when someone dies on their watch.”
Katie’s mother told reporters on Tuesday that she wanted “people to be held account” for “Katie and William and the countless other young people that have died that haven’t had a voice”.
Mrs Allan added: “The treatment of young people in Polmont, in our experience, is inhumane. And, unfortunately, nobody is highlighting that and nobody is being held to account for that, so we want people to be held to account for the death of our daughter.
“There’s no other crime that I know of that the Crown Office says: ‘There is credible and reliable evidence, but it’s alright – we’re not going to prosecute you.’
“It’s absurd.”
Mr Allan added it had been a five-year wait of “grieving” over their daughter’s death.
Katie Allan died at Polmont Young Offenders Institution in June 2018 while serving a sentence for a driving offence.
William Lindsay died in October that year days after being sent there on remand.
A second preliminary hearing has been scheduled for September 15, with the full inquiry set to begin on January 8 2024.
A Scottish Prison Service spokesperson said: “An inquiry requires to take place following every death in custody so that the circumstances in which a life is lost whilst in the custody of the state are properly investigated and understood.
“Where the lives lost are two young individuals, both with no previous experience of custody, the need to investigate and understand the circumstances in which those lives were lost is especially acute.
“The Scottish Prison Service are committed to supporting this inquiry.
“We will not be making any additional public comment at this time.”
An HSE spokesman said: “The death of any young person is tragic and we have carefully reviewed the information provided to us by COPFS.
“While the circumstances of the two deaths are complex, they do not meet HSE’s criteria for investigation. We have informed both families of our decision.”
A spokesperson for the Scottish Legal Aid Board said it had not received an application from Mr and Mrs Allan and have contacted Mr Anwar for further details.
The statement added: “We did receive an application for civil legal aid from another member of the Allan family and have requested further information to enable us to consider the application fully.”
