The probe into an Aberdeen man’s death in police custody nine years ago has become Scotland’s longest ongoing Fatal Accident Inquiry – and with no end in sight.
Warren Fenty, 20, lost his life to a drug overdose while he was locked up at Kittybrewster jail on June 29 2014.
But more than nine years on from his death, Sheriff Morag McLaughlin still hasn’t published her determination.
The Fatal Accident Inquiry (FAI) finished hearing all the evidence, which alleged a string of failings by NHS Grampian and Police Scotland, back in May last year.
But since then, the Scottish Courts and Tribunals Service (SCTS) has twice missed the publication deadlines it set itself, sparking a furious backlash.
Now, the Scottish Centre for Crime and Justice Research (SCCJR) has described the record delay as “an absolutely horrific situation” for Mr Fenty’s grieving family and branded it “deeply unjust”.
The SCCJR’s Professor Sarah Armstrong, a criminologist at the University of Glasgow, criticised the legal system for failing Mr Fenty’s family.
“While this may be a complex case, being forced to wait more than nine years for a sheriff’s determination feels deeply unjust,” she said.
“If you wanted to design a system that was engineered to cause maximum distress to bereaved families, was lengthy, complicated, expensive and lacked transparency then it would look a lot like the Scottish Fatal Accident Inquiry process.”
The professor also warned that the authorities may be at risk of legal action.
She explained: “Article 2 of the European Convention of Human Rights, incorporated as Scottish law, gives people the right to an adequate and prompt investigation of a death in custody.
“The fact that Warren’s family is still waiting for answers raises questions about Scotland’s compliance with its own laws and its commitment to protecting the rights of its people.”
3,326 days and counting
The Press and Journal has established that around two years ago, the Warren Fenty case was third on a list of the longest ongoing FAIs.
The determinations for two of those cases have since been published, meaning at 3,326 days since his death Warren Fenty’s holds the dubious record for the longest-running ongoing FAI in Scotland.
According to the website of the Crown Office and Procurator Fiscal Service (COPFS): “It might take a few days or a few months for the determination to be published”.
But it’s been well over a year since Sheriff McLaughlin finished hearing all the evidence.
Professor Armstrong added: “After multiple reviews and criticisms by independent experts and inspectorates, it is not clear that this is a system that can be fixed.”
‘Unimpressive and untoward’
A lawyer with experience in FAIs has also raised questions about the Warren Fenty inquiry.
Speaking on condition of anonymity, he told The P&J: “Nine years is deeply unimpressive and untoward, but it is not uncommon.
“I suspect it’s a question of cross-checking and making sure that the conclusions are precisely in accordance with what a witness has said.
“Bizarrely, in the last few months before leaving the job, I discovered that there were cases in which the sheriff had completed their determination and sent it off to Saughton House in Edinburgh – the headquarters of the Scottish Courts administration – and they were changing the format.
“They were making sure it was set out in the way they liked. It may be that Sheriff McLaughlin has completed her determination and sent it to Saughton House and they are doing something there.
“Sheriffs’ clerks won’t admit this publicly but they’re tearing their hair out with what’s happening.
“They have no control because it lies at Saughton House in Edinburgh. They’re a law unto themselves.”
Is there a row behind the scenes?
Unnamed individuals have questioned whether a draft determination may already have been shared with some of the parties involved in the Warren Fenty FAI.
They wonder whether an ongoing dispute about the findings behind the scenes may be preventing publication.
SCTS staff have repeatedly refused to confirm whether this suggestion is true or false.
“I could conceive of situations where, if something was controversial, a sheriff might conceivably ask parties if they had objections but I’ve never seen it done,” the anonymous lawyer added.
“It’s not normal to have a draft circulated. I’ve never seen that happen before but I can’t say that it’s not possible.”
Copy and paste response from court service
In January of this year, the SCTS told The Press and Journal that the determination was “due to be published at the end of this month”.
Then in April, a Judicial Office spokesman said it would be a matter of weeks but no more than a month.
He explained that “all necessary checks” had to be carried out “to ensure accuracy”.
But last week, four months on, when we asked why the long overdue determination remained unpublished, the SCTS simply resent a slightly amended comment.
The SCTS copied and pasted the same statement from April, only changing the last line from: “The sheriff’s determination is nearing completion and will be published shortly” to: “The sheriff’s determination will be published once those checks are complete”.
The SCTS also refused to answer a number of questions, including:
- Has Sheriff Morag McLaughlin completed a draft of her FAI determination concerning the death of Warren Fenty?
- If so, when did the document become available for pre-publication checks?
- When did the pre-publication checks commence?
- Is the yet-to-be-published determination still in the hands of the sheriff or SCTS staff at Saughton House?
‘I’m still waiting. What’s going on? What’s the point of an FAI?’
Warren Fenty’s mum Sharon previously said she was feeling “angry, empty, and lost” as she waited for answers about her son’s death.
Speaking again to us again, Miss Fenty, who is suffering from anxiety and depression, launched a scathing attack on the SCTS.
“I’m thinking they don’t care and they’re hoping that I’ll just forget but that isn’t going to happen,” she said.
“They’re making it worse for themselves the longer that they leave it. They’ve left me waiting. I’m still waiting. What’s going on?
“They’ve got no heart. It affects my everyday life. I feel like I’m in limbo because I’m waiting for answers that are never coming.
“They’re cold. You don’t treat families like that. I think it’s disgusting that they can’t even say they’re sorry.
“What is the point of an FAI if it’s going to take this long?”
The grieving mum’s solicitor John Adam, managing partner at Gray & Gray LLP – a firm of solicitors with offices in Ellon and Peterhead – has also been kept in the dark.
“I have heard nothing at all. Not a thing,” he confirmed.
Scotland’s shadow justice secretary Russell Findlay has also slammed the hold-up and warned that “chronic” delays have become “common” as he called for “mandatory timescales” to be imposed on the system.
The Scottish Conservatives MSP said: “No family should have to endure a nine-year wait for answers about the death of a loved one in police custody.
“It seems that even when this FAI process concludes, it might still not bring the closure they deserve.”
Before his death, Warren Fenty prematurely discharged himself from hospital – against medical advice – after being treated for a methadone overdose.
He had been given the intravenous drug naloxone to reverse the life-threatening effects of the dangerous drug.
But Mr Fenty was then immediately arrested by police officers, who were investigating potential drug offences, and he died in a cell just hours later.
‘Communication breakdown’ between NHS Grampian and Police Scotland
Police Inspector Mark Fleming carried out a review of the events leading up to the detainee’s passing.
He told the inquiry that Mr Fenty may have survived if he was arrested today, following operational changes made since his death.
But the senior officer rejected claims that the police station was “chaotic” on the day of the incident.
Inspector Fleming agreed that the opening of Kittybrewster Police Station’s new custody centre did not get off to a good start in the week of Mr Fenty’s death.
The court heard alarms were ringing and couldn’t be switched off, certain keys were not working for doors, CCTV was not functioning properly and a fingerprint scanner was faulty.
Insp Fleming also told Aberdeen Sheriff Court that there was a “communication breakdown” between NHS Grampian and Police Scotland during the handover of Mr Fenty.
Sheriff McLaughlin heard that there was a “significant gap” in information shared between those who came into contact with Warren Fenty.
Evidence considered by the FAI revealed that Mr Fenty was a “high-risk” prisoner on suicide watch and required welfare checks every 30 minutes.
But three checks were not carried out over a one hour and 45 minute period, and others were “not of a satisfactory standard”.
Medical expert Dr Michael O’Keefe – a former Strathclyde Police advisor on custody care, procedures and protocols – told the inquiry that Mr Fenty may have survived the drug overdose if his worsening condition was noticed sooner in police custody.
Police Scotland has doubled the number of personnel staffing custody teams on duty at Kittybrewster Police Station since Warren Fenty’s death, the inquiry was told.
The court heard that the custody suite is also now supported by nurses working onsite round the clock.
And national guidance is available, which details the necessary procedures when dealing with prisoners who have been administered Naloxone prior to custody.
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