Section 1: Introduction
1.1 This chapter deals with the remit of the Review; the Review process; the aim of the consultation; the statutory basis for fatal accident inquiries ( FAIs); and other systems for statutory inquiries.
Remit of the Review
1.2 The Review has the following remit:
To review the operation of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976, which governs the system of judicial investigation of sudden or unexplained 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 21 st century.
1.3 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 (the COPFS). In practice the need for a judicial investigation arises in only a very small fraction of these cases. Since this Review relates to the system of judicial investigation, it is concerned with the work of the procurator fiscal only in so far as a judicial investigation is or may be required.
The Review process
1.4 The Review began its work on 9 June 2008, shortly after Andrew Mackenzie was appointed by Lord Cullen to be Secretary to the Review (see Annex B for further details). Since then the Review has received comments from a number of individuals and interest groups and sought comments from others with a view to identifying particular issues or concerns which might be covered in the process of the consultation.
1.5 It should be noted that the views of contributors referred to in the paper do not reflect those of the Review, but it was thought appropriate to refer to some contributions in the context of the paper. It is emphasised that no conclusions have been reached on any of the matters raised.
1.6 Lord Cullen is expected to report in 2009, when he may make recommendations for amendments to primary and secondary legislation and other changes. His aim will be to ensure that Scotland has an effective, robust and proportionate FAI system.
Aim of the consultation paper
1.7 The paper deals with five groups of questions about: general matters; the decision that an FAI should be held; the holding of an FAI; evidence and procedure; and the determination of sheriffs. All of these issues are, of course, inter-related. Thus decisions on one issue will inevitably affect the others.
1.8 The sections of this paper identify key questions for discussion and deal with a number of specific issues. Some identify areas where further information and investigation are needed. Some refer to options for change that have already been identified, either because they have already been introduced in one or more areas in Scotland, or because they have been adopted in other jurisdictions, or because they have emerged from work already done by the Review. This paper does not aim to draw conclusions about such options. Its purpose is to identify what they are and what issues they raise, and whether they are worthy of further examination.
Statutory basis for FAIs
1.9 The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the Act") makes provision for the holding of FAIs in certain circumstances. The Act confers duties on the procurator fiscal, acting on behalf of the Lord Advocate, the head of the systems of criminal prosecution and investigation of deaths in Scotland, in exercise of the Lord Advocate's retained functions. 1
1.10 The Act provides that there must be FAIs into deaths in certain circumstances (the mandatory category). 2 However, an FAI does not require to be held into a death within the mandatory category where criminal proceedings have been concluded against any person in respect of the death and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently
established in the course of such proceedings. 3 The Act also provides for the holding of an FAI where it appears to the Lord Advocate to be expedient in the public interest that an FAI should be held into the circumstances of a death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern (the discretionary category). 4
1.11 The procurator fiscal applies for an FAI to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected. 5 At the FAI it is the duty of the procurator fiscal to adduce evidence with regard to the circumstances of the death. 6
1.12 The Act provides that the sheriff is to make a determination setting out the circumstances of the death, so far as they have been established to his or her satisfaction, including "the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided", and "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death". 7 It is understood that recommendations are made by sheriffs in about one third of FAIs. It is to be noted that the sheriff has no power to make any finding as to fault or to attribute or apportion blame. 8
Other systems for statutory inquiries
1.13 The provisions in the Act are not the only statutory provisions under which an inquiry can be held into the death of a person in Scotland (or what is treated as Scotland for the purpose of investigations into deaths). Some other statutes which allow for an inquiry into a death provide that an FAI is not to be held, unless the Lord Advocate directs that one should be held, or visa versa. 9
1.14 It is understood that following a recent decision of the Outer House of the Court of Session 10 the Scottish Ministers take the view that an inquiry under the Inquiries Act 2005 (the 2005 Act) can be held into the circumstances of a death. However, there is no provision in the 2005 Act to enable the Lord Advocate to dispense with the obligations placed on the Lord Advocate by the Act.