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Review of Fatal Accident Inquiry Legislation
20/11/2008
The Rt Hon Lord Cullen of Whitekirk KT has today announced the start of a consultation as part of his Review of Fatal Accident Inquiry Legislation.
The Scottish Government appointed him 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 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.
Since June, when the Review began work, it has received representations from a number of individuals and interest groups and sought comments from others.
Lord Cullen said:
"The purpose of publishing this consultation paper is in order to inform interested parties of the principal issues to be considered by the Review and to take their views on such issues. From representations that we have received so far, it is apparent that there is a desire for reform in some areas of the fatal accident inquiry system. However, I have not reached any conclusion on the questions that have been posed."
Responses to the consultation are invited by 20 February 2009. After that more specific consultations on individual topics may be conducted before any conclusions are reached. Lord Cullen will make recommendations later in 2009 for possible amendments to the primary and secondary legislation governing fatal accident inquiries, to ensure that they continue to provide an effective, robust, and proportionate system for those using them.
The consultation paper asks questions relating to:
- General matters, which considers the purpose and features of an FAI under the Act; the forum in which it should be held; the procurator fiscal; and jurisdictional issues, such as deaths abroad and multiple deaths in more than one jurisdiction.
- The decision that an FAI should be held, which considers the categorisation of deaths for which an FAI is or may be required and the communication of decisions as to whether there should be an FAI.
- Holding an FAI, which considers cases in which it is decided that an application is to be made by the procurator fiscal for the holding of an FAI, so looks at delay; support of relatives; and legal aid.
- Evidence and procedure, which considers the way in which an FAI can examine the circumstances of the death with effectiveness, fairness and the minimum of delay, so looks at preliminary hearings; advance provision for evidential matters; signed and sworn statements; independent experts; assessors; and the admissibility of evidence.
- Determinations, which considers the determinations of sheriffs, such as the content of determinations; the use of determinations; the following up of recommendations, and the reviewing of determinations.
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 the need for 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.
FAIs
FAIs are public inquiries held in respect of fatal accidents, such as deaths of persons in the course of employment, in legal custody or sudden, suspicious and unexplained deaths in circumstances giving rise to serious public concern.
The procurator fiscal investigates all sudden, suspicious, accidental and unexplained deaths to establish the cause of death and the circumstances which gave rise to the death. The procurator fiscal will decide whether any criminal proceedings are necessary or whether it would be appropriate to instruct an FAI. Only the procurator fiscal, under the authority of the Lord Advocate, can instruct an FAI which is a public examination of the circumstances of the death (though inquiries are mandatory in the case of deaths which occur as a result of an accident in the course of employment or in legal custody).
The purpose of an FAI is to establish the time, place and cause of a death. Such inquiries do not attribute blame or guilt in either the civil or criminal sense. The procurator fiscal leads evidence at the inquiry, which is held in the sheriff court. At the conclusion of the inquiry, the sheriff will issue a determination which will contain findings about the circumstances of the death. The sheriff may also make recommendations as to how such deaths may be avoided in future. These recommendations are not legally binding. Sheriffs make such recommendations in around a third of all FAIs.