The north-east’s most senior sheriff has refused to stand down from an inquiry into an Aberdeen man’s death in police custody.
Sheriff Principal Derek Pyle recently removed Sheriff Morag McLaughlin from the Fatal Accident Inquiry (FAI) into 20-year-old Warren Fenty’s drug overdose death at Kittybrewster custody suite in June 2014.
The sheriff principal replaced Ms McLaughlin after a “personal medical matter” meant she missed four deadlines to publish her determination in the case, which finished hearing evidence two years ago.
An emergency hearing at Aberdeen Sheriff Court today was told how Sheriff Principal Pyle caused “disquiet” among lawyers acting for police personnel and NHS Grampian when he excluded them from a recent private meeting with Warren’s grieving mum Sharon to explain the delays.
During today’s hearing, the senior legal figure rejected calls to recuse himself over claims that the meeting had ignored the principles of open justice.
However, Sheriff Principal Pyle refused the motion, claiming the circumstances were “unprecedented” and explained: “I dare say I was in a difficult position. I still think it was the right thing to do.
“I understand that justice has to be seen to be done and not just done and of course, there is no suggestion by anybody – quite properly – that anything said was improper.
“I accept that there is an issue of the appearance. However, in the whole circumstances, I do not consider it would be the responsible thing for me to recuse myself.”
Earlier, various parties involved in the FAI had suggested that the sheriff principal may have compromised his position.
Mr Paterson, counsel for NHS Grampian, argued: “If there is perceived to be procedural unfairness then there could be a challenge on that basis.”
Duncan Mawby, representing an NHS doctor, added: “My concern is simply that it puts us all potentially in a vulnerable position where, at the endpoint, any party to this inquiry who is dissatisfied with your Lordship’s determination – perhaps without good reason at all – has a basis upon which to seek to overturn it and we could end up, I fear, in that doomsday scenario where we simply have to start again and I think that would be particularly undesirable”.
Lawyers ask Aberdeen sheriff to recuse himself
Criticising Sheriff Principal Pyle’s meeting with Miss Fenty, Professor Peter Watson – who represents six Police Scotland employees – told him: “We don’t regard that meeting having taken place prior to your Lordship’s determination was the correct course of action and doesn’t accord with the principles of open justice.
“Our position would be that any meeting with the family should have taken place after your Lordship’s determination because it’s a meeting that took place without other parties being present and it didn’t have the character of public scrutiny which is normally appropriate when there is a meeting involving an interested party.”
Gordon Williams, acting on behalf of two other police officers, agreed with Professor Watson’s position, but added: “I share your Lordship’s view to avoid what was described as the ‘nuclear’ option of re-running the whole thing again, and so we have to try and make some effort to try and avoid that.”
The Warren Fenty FAI, which remains incomplete almost 10 years on from the young man’s tragic death, has become Scotland’s longest-running ongoing probe of its kind.
During the latest proceedings, the sheriff principal revealed that he had become aware of severe delays to the FAI’s progress almost a year ago, in March last year.
“I’m not blameless in that,” he admitted to the court, adding: “That is a failing by me.”
He explained that the system he inherited to monitor his sheriffdom’s performance did not include FAIs on the list of ongoing cases.
“An avizandum list for all my sheriffs, which is checked regularly, only relates to civil procedure and has never included Fatal Accident Inquiries,” he said.
Sheriff Principal Pyle then criticised the Crown Office, which is responsible for the investigation of all sudden, suspicious, accidental and unexplained deaths.
The authority only referred Warren Fenty’s case to the Scottish Courts and Tribunals Service in March 2020, almost six years after he lost his life.
The timeline, which was previously submitted by its officials to Sheriff Morag McLaughlin, revealed a three-year period of inactivity.
Crown slammed by sheriff after its role in delays to Aberdeen police custody death probe into Warren Fenty tragedy
“No doubt, Sheriff McLaughlin was exercised by the delay in the start of this inquiry,” the sheriff principal said.
“There appears to be, at least in one view, a three-year gap. I asked the Crown if they wanted to say any more about that and I understand that the Crown’s position is that they have nothing further to say.
“I do wonder about that. Should I therefore conclude that it either sat on someone’s desk and nobody did anything about it? Or was it simply not before a member of the Crown during that three-year period?
Sheriff Principal Pyle then asked fiscal depute Muhammad Sadiq: “Is there nothing the Crown is offering to say by way of explanation for that three-year gap?”
Mr Sadiq replied: “My Lord, there is no other explanation other than what is already contained within the timeline that was lodged with your Lordship’s clerk.
“I do accept there was a three-year gap.”
Aberdeen sheriff admits ‘situation is very regrettable’
The emergency hearing, which was scheduled to decide the FAI’s future, ended after the sheriff principal confirmed he planned to publish his report within the next four weeks.
“My intention would be that this determination would be produced very quickly and I say that for the obvious reason that it’s gone on for far too long and I’m looking at a four-week period.
“Whether I could follow that, I don’t know. My intention would be to start reading the evidence on Monday next week.
“I’ve got some court appearances during that week and the following week, but apart from that, I will be doing nothing else other than dealing with this determination for probably two or three weeks.
“This situation is both very regrettable and also unprecedented but I will proceed on the basis that I’ve indicated.”
Speaking after Tuesday’s hearing, Warren’s mum Sharon, 54, hit out at some of the lawyers who spoke up during the proceedings.
“I wasn’t happy about the lawyers against me going on about my meeting with the sheriff principal,” Miss Fenty said.
“I don’t understand why it’s such a big deal to them. They were talking like they wanted us to go right back to the beginning with a whole new FAI.
“It’s childish. I don’t want to play their games. I want answers about my son’s death. It’s been almost 10 years of waiting.”
Sharon’s son Warren was discovered unresponsive in cell 28 at Kittybrewster custody centre at 7.04am on June 29 2014.
He was later declared dead by paramedics at 7.25am.
Warren had died in his sleep from methadone intoxication just hours after being locked up, following treatment for a drug overdose in the high-dependency unit at Aberdeen Royal Infirmary (ARI).
The day before, he had prematurely discharged himself from ARI – against doctors’ advice – and then police officers detained him in connection with potential drug offences.
Warren had already received the intravenous drug Naloxone to counteract the effects of an overdose and, at the time of his detention, the young man was on suicide watch.
But it emerged during evidence heard by his FAI that, although police officers were required to visit the “high-risk” prisoner’s cell every 30 minutes, three checks weren’t made over a one hour and 45 minute period.
Aberdeen Sheriff Court was previously told that other checks were “not of a satisfactory standard” – according to Inspector Mark Flemming, a senior police officer who later reviewed the events leading up to the detainee’s passing.
Insp Flemming also claimed there had been a “communication breakdown” between NHS Grampian and Police Scotland during the handover of Warren.
And the inspector spoke of a “significant gap” in information shared between those who came into contact with the deceased.
READ MORE: How The P&J’s reporting led to a sheriff being removed from Scotland’s longest-ever ongoing Fatal Accident Inquiry
Aberdeen mum’s showdown with top sheriff over distressing delays to son’s death probe
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