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CHAPTER 10 SUMMARY OF RECOMMENDATIONS
In this chapter I summarise my recommendations, with references to the paragraphs of the report where they appear, and group them together where appropriate.
Sheriff court and sheriffs
10.1 An FAI should, where possible, not be held in a sheriff courtroom but elsewhere in other appropriate premises; and, where it is unavoidable that the FAI should be held in a courtroom, care should be taken to select one which, along with its ancillary facilities, such as waiting rooms, has the least connection with criminal proceedings. I also recommend that in FAIs sheriffs and practitioners dispense with the wearing of wigs and gowns, and that sheriffs discourage the hostile questioning of witnesses save where it is essential for ascertaining the true circumstances of the death (paragraph 3.13).
10.2 Where an FAI is likely to involve matters of some complexity, a sheriff who has adequate experience is assigned to it, and, where necessary, is enabled to sit in the sheriffdom in which the FAI is to be held (paragraph 3.17).
10.3 The Judicial Studies Committee should include the law and practice of FAIs in their seminars, and sheriffs should be encouraged to take advantage of attending them (paragraph 3.18).
Mandatory fatal accident inquiries
10.4 It should continue to be mandatory that an FAI should be held into work-related deaths (paragraph 4.7).
10.5 The legislation in regard to "lawful custody" (i) should be updated so as to refer to the Prisons (Scotland) Act 1989; and omit reference to borstal institutions; and (ii) should be extended to cover 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).
10.6 The category of cases in which an FAI is mandatory should include the death of any person who is subject at the time of death to compulsory detention by a public authority within the meaning of section 6 of the Human Rights Act (paragraph 4.20).
10.7 The category should also include the case of 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).
10.8 The Lord Advocate's power to make an exception under the Act should be extended to cases in which the Lord Advocate is satisfied that the circumstance of the death have been sufficiently established in a public inquiry under the 2005 Act (paragraph 4.31).
The scope for fatal accident inquiries
10.9 The Lord Advocate should be enabled to apply for a single FAI into multiple deaths in more than one sheriffdom; to direct which procurator fiscal will lead the investigation of the deaths, and in which sheriffdom the FAI is to be held (paragraph 4.35).
10.10 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, excluding cases for which provision is to be made in the Coroners and Justice Bill. The power of the procurator fiscal to investigate such deaths should be clarified, if necessary by legislation (paragraph 4.43).
Decisions against the holding of a fatal accident inquiry
10.11 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
10.12 There should be a central FAI team, led by an Advocate depute or a senior prosecutor, 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).
10.13 The central FAI team should also 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. The main functions of the team should be to (i) track cases and record their history, with details such as the dates of death, the report to the procurator fiscal, any report by a specialist agency, any prosecution, the completion of investigation, and any report to Crown Office; (ii) ensure that the investigation and preparation by the procurator fiscal of each case is supported by adequate resources (including advice, staff and expertise), supplementing them where appropriate; (iii) give guidance to the procurator fiscal in the light of previous FAIs, including as to the choice of expert witnesses; and (iv) ensure that preparation proceeds as expeditiously as possible (paragraph 6.15).
10.14 The central FAI team should also be responsible for maintaining statistics relating the different types of case, their progress and timing (paragraph 6.17).
10.15 One of the duties of the central FAI team should be to confirm that a contact point with the COPFS has been established and maintained (paragraph 6.56).
10.16 (i) VIA officers should be trained in FAIs and that at least one officer should be a member of the proposed central FAI team, and liaise with the family and the local VIA officer; and (ii) VIA officers and procurators fiscal dealing with deaths should receive training on dealing with bereavement (paragraph 6.57).
10.17 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).
The proceedings
10.18 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, so that the sheriff, the relatives and other interested parties can be informed as to the state of investigation, the expected timescale for the FAI and any factors likely to affect progress (paragraph 6.22).
10.19 A preliminary hearing should be held in every case, save where the sheriff, on cause shown, dispenses with it. Its purpose is 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).
10.20 At the preliminary hearing the sheriff should fix the date for the commencement of the hearing of evidence, approve and settle the issues, and identify the extent to which any issues or matters are capable of being resolved (paragraph 6.30).
10.21 Prior to the preliminary hearing the procurator fiscal should circulate copies of the documents to which he or she intends to refer at the FAI, a list of the persons whom he or she intends to lead as witnesses, and copies of the reports and police statements made by them. Leaving aside police statements, the same should apply to the interested parties. At the preliminary hearing the sheriff should deal with any questions relating to disclosure of, and access to, documentary evidence (paragraph 6.31).
10.22 The sheriff should be empowered, on cause shown and after hearing the procurator fiscal and the interested parties, to transfer the case to a different sheriff court in the same or a different sheriffdom (paragraph 6.32).
10.23 In regard to 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 and 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. Legal aid should, as a matter of course, be granted in any case where the participation of the relatives is necessary in order to comply with article 2 of the ECHR (paragraph 6.46).
10.24 The recognised participants who have the right to appear and adduce evidence at an FAI should be extended to include civil partners and cohabitants (paragraph 3.50).
10.25 Rule 10 of the Rules should be replaced by a general provision for the receipt in evidence at an FAI of a written statement (including an affidavit) admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988; and that such provision should be the same as that in an ordinary cause in the sheriff court (paragraph 7.10).
10.26 There should be a comprehensive self-contained set of rules for FAIs (paragraph 7.22).
10.27 The sheriff should have power to order that such part of the FAI as he or she considers appropriate should not be open to the public (paragraph 7.24).
Determinations
10.28 Sheriffs should use a standard form of determination, incorporating, according to the nature of the case, findings in fact, findings related to section 6(1) of the Act, a note on the evidence and issues, and such recommendations, if any as he or she considers appropriate (paragraph 8.7).
10.29 Consideration should be given to the clarifying of the meaning of section 6(1)(c), if necessary by amendment to the legislation (paragraph 8.13).
10.30 Where, in the light of the circumstances of the death, the sheriff is satisfied of the need to take action to prevent other deaths, the sheriff should have the power to make recommendations for this purpose to (i) a party to the FAI; and (ii) any body concerned with safety which appears to the sheriff to have an interest in those circumstances (paragraph 3.32).
10.31 Subject to such redaction as may be appropriate, the Scottish Courts website should contain all determinations; and that the website should be fully searchable (paragraph 8.21).
10.32 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 an appropriate department of the Scottish Government within a period set by the sheriff, stating whether and to what extent it has implemented, or intends to implement, the recommendation, or, if not, for what reason or reasons. Where implementation is stated as intended, there should be a further duty thereafter to confirm its implementation (paragraph 8.25).
10.33 The Scottish Government webpage should be revived and upgraded. It should show, under reference to the sheriff's determination, the text of the recommendation, to whom it was directed and its reasons, with a link to the full text of the determination on the Scottish Courts website. It should also show the text and date of the response or responses. The relevant department should also be responsible for publishing an annual report of the recommendations and the responses to them. The report should also be laid before the Scottish Parliament and the United Kingdom Parliament (paragraph 8.26).
10.34 When issuing the determination the sheriff should have power to direct to whom a copy of the determination should be sent for the dissemination of the lessons of the FAI (paragraph 8.28).
Fresh proceedings
10.35 It should be open to the Lord Advocate to apply for fresh FAI proceedings in regard to a fatality where he or she is satisfied that (a) as to the existence of evidence (i) which was not reasonably available at the time of the original FAI; and (ii) which, if available and accepted, would have been likely to affect the determination of the sheriff in regard to one or more of paragraphs (a) to (e) of section 6(1) of the Act; and (b) it is in the public interest that such evidence should be considered in such proceedings (paragraph 9.8).
10.36 The 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).
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