The Scottish Government

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Footnotes

1. On devolution, the responsibility of the Lord Advocate as head of these systems was preserved. Section 48(5) of the Scotland Act 1998 provides that "[a]ny decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person". These functions are known as the Lord Advocate's retained functions.
   
2. See section 1(1)(a) of the Act.
3. See section 1(2) of the Act.
4. See section 1(1)(b) of the Act.
5. See section 1(3)(a) of the Act.
6. See section 4(1) of the Act.
7. See section 6(1) of the Act.
8. See Black v. Scott Lithgow Ltd 1990 SC 322.
9. The Gas Act 1965, the Health and Safety at Work etc. Act 1974 and the Merchant Shipping Act 1995 all make provision for inquiries into deaths. Where an inquiry is held under the 1965 Act or the 1974 Act, the relevant procurator fiscal shall not investigate the circumstances of the death and apply to the sheriff for the holding of an FAI, unless the Lord Advocate directs that such an FAI should be held. In terms of the 1995 Act, no inquiry into deaths of crew members and others shall be held under that Act where an FAI is to be held.
10. See Black v. Lord Advocate and others and Kennedy v. Lord Advocate and others 2008 SLT 195.
11. See section 3(1)(a) of the Act.
12. The COPFS Deaths Manual of Practice and the COPFS Book of Regulations, Deaths Chapter 12.
13. See section 1(3)(a) of the Act.
14. See section 1(1)(a) of the Act.
15. See 'The Sheriff Court: Report by the Committee appointed by the Secretary of State for Scotland', Cmnd 3248 ("the Grant Committee Report"), paragraph 317.
16. See section 3(4) of the Act.
17. See Savage v. South Essex Partnership NHS Foundation Trust [2008] 1 WLR 1667.
18. These examples have been taken from selected states in Australia and Canada and from New Zealand.
19. See R ( JL) v. Secretary of State for Home Department [2008] 1 WLR 158.
20. See section 1(1)(b) of the Act.
21. See Emms, Petitioner 2008 SLT 2, Black v. Lord Advocate and others and Kennedy v. Lord Advocate and others 2008 SLT 195.
22. See section 3(2) of the Act and rule 4 of the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 ( SI 1977/191) ("the Rules").
23. See section 3(1)(a) of the Act.
24. 'Death Cases: A Thematic Report on Liaison in Death Cases with Particular Reference to Organ Retention', Edinburgh 2007.
25. See the 'Civil Legal Assistance Handbook', Chapter 13.88.
26. See Lord Advocate, Petitioner 2007 SLT 849.
27. See R. (on application of Khan) v. Secretary of State for Health [2004] 1 WLR 971.
28. See section 36 of the Deaths Manual of Practice.
29. Glasgow and Strathkelvin and Lothian and Borders.
30. See rule 10(1) of the Rules.
31. It is understood that a sheriff recently called for grieving families to be spared having to give oral evidence at FAIs.
32. See section 4(6) of the Act.
33. See the Grant Committee Report, paragraph 320.
34. See section 6(1) of the Act.
35. See Leighton v. Lord Advocate 2005 SLT 800.
36. Such countries include Australia, Canada and New Zealand.

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