Scottish Government
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Review of Fatal Accident Inquiry Legislation

The Scottish Government appointed him to review the operation of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, which governs the system of judicial investigation of sudden or unexpected deaths in Scotland, so as to ensure that Scotland has an effective and practical system of public inquiry into deaths which is fit for the 21st century.

Lord Cullen said:

"In this report I set out my conclusions and recommendations arising from my Review of fatal accident inquiry legislation. I gratefully acknowledge the assistance which I have received from the strong response to the consultation. My aim has been to set out practical measures for a system for inquiry into fatalities that is effective, efficient and fair."

The following is a summary of the main recommendations, with references to the paragraphs of the report where they appear:

Sheriff court and sheriffs
  • An FAI should, where possible, not be held in a sheriff courtroom; sheriffs and practitioners should dispense with the wearing of wigs and gowns; sheriffs should discourage the hostile questioning of witnesses save where it is essential for ascertaining the true circumstances of the death (paragraph 3.13).
  • Where an FAI is likely to involve matters of some complexity, a sheriff who has adequate experience should be assigned to it, and, where necessary, be enabled to sit in the sheriffdom in which the FAI is to be held (paragraph 3.17).
Mandatory fatal accident inquiries

The following should be added to the mandatory category:

  • the death of a child while being kept in "secure accommodation"; and the death of any person who is under arrest, or subject to detention by, a police officer at the time of death (paragraph 4.14)
  • the death of any person who is subject at the time of death to compulsory detention by a public authority (paragraph 4.20)
  • the death of a child who at the time of death was being maintained in a "residential establishment" (including secure accommodation) for the purposes of the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968 (paragraph 4.27)
Fatal accident inquiries into deaths arising out of events in more than one sheriffdom
  • The Lord Advocate should be enabled to apply for a single FAI into multiple deaths in more than one sheriffdom (paragraph 4.35).
Fatal accident inquiries into deaths abroad
  • There should be an extension to the Act to make provision for the Lord Advocate to have a power to apply for an FAI into the deaths of persons normally resident in Scotland where the body is repatriated to Scotland (paragraph 4.43).
Decisions against the holding of a fatal accident inquiry
  • Where the Lord Advocate decides not to apply for an FAI, written reasons for the decision should be provided to relatives of the deceased when requested by them (paragraph 5.11).
The Crown Office and Procurator Fiscal Service
  • The COPFS should review its application of resources and expertise in order to ensure that FAIs are held as promptly as possible after the death (paragraph 6.14).
  • There should be a central FAI team for ensuring that the knowledge, skills and experience of procurators fiscal for FAI work are adequate; for overseeing the training of procurators fiscal in such work; and for the setting of performance standards (paragraph 3.44).
  • Victim Information and Advice officers from the COPFS should be trained in FAIs and at least one officer should be a member of the proposed central FAI team, and liaise with the family and the local officer; and such officers and procurators fiscal dealing with deaths should receive training on dealing with bereavement (paragraph 6.57).
Delay
  • The central FAI team should have the responsibility for overseeing progress from the outset in all cases for which an FAI is mandatory or is likely to be recommended for exercise of the Lord Advocate's discretion (paragraph 6.15).
  • In cases in which an FAI is mandatory, the procurator fiscal should be required to apply for an FAI at an early stage after the death (paragraph 6.22).
  • Preliminary hearings should be held in every case to ensure that the FAI is effective in achieving the object of determining the circumstances, and doing so in a manner which is fair, expeditious and efficient (paragraph 6.29).
Legal aid
  • Relatives of the deceased should not have to justify the reasonableness of the granting of legal aid for their representation at the FAI.
  • The Scottish Ministers should consider increasing the limit for legal aid in FAIs and the extent to which legal aid is available within that limit (paragraph 6.46).
Restrictions on public access
  • The sheriff should have power to order that such part of the FAI should not be open to the public (paragraph 7.24).
Sheriffs' recommendations
  • When a recommendation is made by a sheriff, the entity or body to whom it is directed should be under a duty to make a written response to the Scottish Government (paragraph 8.25).
  • The Scottish Government should be responsible for publishing the response or responses. This should include the publishing of an annual report of the recommendations and the responses to them, which should be laid before the Scottish Parliament and the United Kingdom Parliament (paragraph 8.26).
Fresh proceedings
  • It should be open to the Lord Advocate to apply for fresh FAI proceedings in regard to a fatality in certain prescribed circumstances (paragraph 9.8).
  • These fresh proceedings should take the form of a re-opening of the original FAI, save where the sheriff is satisfied that it is more appropriate that there should a further FAI (paragraph 9.9).

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 sets out the law on fatal accident inquiries in Scotland. Around 14,000 deaths are reported every year. About half of them are investigated by the procurator fiscal as part of the work of the Crown Office and Procurator Fiscal Service. Since devolution between 35 and 80 fatal accident inquiries are held each year. Therefore, in practice an FAI arises only in a very small fraction of these cases. Since the Review relates to the system of judicial investigation, it is concerned with the work of the procurator fiscal only in so far as an FAI is or may be required.

 

 

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