1. The Scottish Government's consultation on amending the legislation that governs Fatal Accident Inquiries (FAIs) will inform subsequent legislation which will largely implement the recommendations made by former Lord President of the Court of Session, the Rt Hon the Lord Cullen of Whitekirk KT, in his 2009 Review of Fatal Accident Inquiry Legislation (subsequently referred to as Lord Cullen's Review).
2. An FAI is an examination of the circumstances of a death to determine the time, place and cause of death. They are fact-finding inquiries held in the public interest and are not intended to establish guilt or blame in the criminal or civil sense. The sheriff will make a determination as to the cause of the death and may make recommendations as to how deaths in similar circumstances may be avoided in the future.
3. The Scottish Government agrees with the majority of the 36 recommendations made in Lord Cullen's Review, and some have already been implemented by the Crown Office and Procurator Fiscal Service (COPFS). Many of the further recommendations would require primary legislation and the consultation focused on these issues. The areas covered are:
- Mandatory categories of FAIs;
- Deaths abroad;
- Fatal Accident Inquiry accommodation;
- Sheriffs' recommendations; and
- Legal aid for bereaved relatives.
4. Fifty seven analysable responses were received, 49 from groups and 8 from individuals. The group responses included 4 insurance industry bodies or firms, 14 legal bodies or firms, 7 local authorities, 15 public bodies and 9 representative groups. Individual respondents included members of the legal profession, including current and former members of the judiciary, other interested members of the public, and an MSP.
5. Along with a brief overview of the issues raised, this summary gives the overall balance of opinion on each of the questions which invited a 'Yes or No' response. Given that not all respondents answered all questions, the number of respondents varies question by question.
Mandatory categories of FAIs
6. The consultation paper gave an overview of the current legislation, setting out that an FAI is mandatory for deaths as a result of an accident in the course of employment or in legal custody, including prison.
7. The Government intends to maintain the provision for mandatory FAIs into deaths that appear to have resulted from an accident occurring whilst working, with the majority of respondents (29 out of 36), agreeing that the current mandatory provision for work-related deaths is sufficient. Issues raised included that holding additional FAIs would have public resource implications and could actually exacerbate the delays which other proposals are seeking to address. Some respondents questioned whether expanding the circumstances which would trigger a mandatory FAI would be in the public interest and, in particular, questioned whether any benefits would result. There were specific concerns about whether it would in any case be realistic to hold some of these FAIs, particularly given that some cases could refer to events of many years ago.
8. Those who did not agree that the current provisions are sufficient questioned the 'no public interest' argument and pointed to occasions, such as deaths from industrial disease and in the event of any work-related fatal road traffic accident, when they believed FAIs should be held.
9. A substantial majority agreed that a death which occurs when a person has been arrested or detained by police (31 out of 33 respondents), or the death of a child whilst in 'secure care' (29 out of 33 respondents), should be subject to a mandatory FAI. In both cases many noted that a transparent process was important to foster and maintain trust in state institutions. The small number of respondents disagreeing tended to suggest that an element of discretion and flexibility should be retained.
10. As the consultation paper explains, the Scottish Government does not agree with the requirement for a mandatory FAI if the death of a child occurs whilst they are resident at other residential child care (such as private boarding schools or residential special schools). Compared with many of the proposals in the consultation, respondents were divided on this issue, although a clear majority (21 out of 32 respondents), did support the Government's position. Those who agreed sometimes suggested the existing arrangements are sufficient or pointed out that many of the deaths of children in residential establishments are the consequence of life-limiting conditions. Those who disagreed, and therefore considered that the requirement for mandatory FAIs should cover other forms of residential accommodation, frequently made the straightforward point that all child deaths in residential care should be investigated through an FAI.
11. Lord Cullen recommended the extension of mandatory FAIs to 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. Although the Government accepted the principle of an independent investigation, it considers that there should continue to be some discretion to determine whether an FAI is appropriate in particular cases. The consultation paper identified two possible future options: an investigation by the procurator fiscal and exercise of discretion by the Lord Advocate on completion of that investigation to instruct a FAI; or a case review investigation by a public authority, such as the Mental Welfare Commission, combined with the continuation of the Lord Advocate's duty to investigate the death and a discretionary power to initiate an FAI. Respondent opinion was divided, albeit with a clear preference for the first option: 20 out of 28 respondents supported the first option; and 13 out of 30 respondents supported the second option, which was opposed by a clear majority.
12. Those who expressed a preference for an investigation by the procurator fiscal sometimes simply noted that the current arrangements appear to work satisfactorily and hence should not undergo significant change. Others thought that an element of discretion as to the type and level of investigation should be retained. Some concerns were raised, however, including that holding an FAI for all of those who died while subject to detention would be disproportionate, could be distressing for families and would risk diverting attention from other deaths which may be more appropriate for investigation.
13. The positive case put forward in support of a case review investigation by a public authority such as the Mental Welfare Commission included that it would appear to offer greater transparency. It was also suggested that an 'expert authority' such as the Mental Welfare Commission could provide a higher level of scrutiny and, by extension, ensure that all areas where practice could be improved are identified. However, there were concerns that this option would not command a sufficient level of respect and the powers available would be less than those available to the Lord Advocate in an FAI.
14. In terms of the impact the mandatory categories proposals could have on themselves as individuals, their organisation or their community, a number of respondents were of the view that the proposals would have minimal or no impact on themselves or the area in which they worked. Some respondents pointed to the resource implications of any possible changes. Others commented on the possible impact of the proposals on bereaved families.
15. Under current legislation, there is no provision for holding an FAI into the death of a person domiciled in Scotland who dies abroad, even if the body is repatriated to Scotland. The Scottish Government proposes that there should be power to hold an FAI into the death of a person domiciled in Scotland who dies or is killed abroad but that this should be at the discretion of the Lord Advocate and should only apply where the body has been repatriated to Scotland. The very clear majority (31 out of 32 respondents), agreed with the Government's proposal, with some noting that any powers are not likely to be used extensively and only on the basis of public interest considerations.
16. The consultation paper set out three possible criteria to be considered in deciding whether to hold an FAI. These were: whether there had been circumstances which called for investigation; whether there had been a satisfactory investigation (in the country where the death took place); and whether there was a prospect of an FAI yielding significant findings. The majority agreed with all three of the criteria suggested, although a small number did not agree with the second criterion. The principle issue raised was how an assessment could be made as to whether a satisfactory investigation had been carried out.
17. In terms of the impact the deaths abroad proposals could have on themselves as individuals, their organisation or their community, a number of respondents were of the view that the proposals would have minimal or no impact on themselves or the area in which they worked. The most frequently raised issues were the practical and resource implications of introducing these proposals, with some suggesting these could be significant. Others identified positive impacts that the proposals could have, including that they could provide an opportunity to offer support and bring solace to bereaved families at an extraordinarily difficult time.
18. The consultation paper notes that there has been some criticism in recent years in relation to what are seen as unacceptable delays in holding FAIs, with the main concern being about the time between a death and the resulting FAI taking place. Lord Cullen did not recommend time limits for FAIs and a large majority of (37 out of 45 respondents), agreed with his position, albeit that some also noted their concern about unacceptable delays and the distress these may cause.
19. Reasons given for not supporting mandatory timescales included that an FAI is not usually heard before any potential criminal trial is concluded, that many of the public bodies involved are beyond the control of the Lord Advocate, and that imposing unrealistic timescales on COPFS could undermine the quality of their investigations. Concerns were also raised that imposing time limits could simply result in FAIs being opened on a mandatory date, but then adjourned. Many of those who did not support mandatory timescales still offered suggestions for improving the current approach. Suggestions often focused on the need for transparency and clarity and included, for example, that in non-complex cases, it would be realistic to set a notional timescale for opening an FAI and that the Scottish Government should issue guidance to help prevent undue delay.
20. Those who thought that mandatory timescales should be introduced raised similar issues, although sometimes drew different conclusions about the best way forward. It was noted, for example, that there are many other areas of the law in which time limits already exist and that while time limits may be arbitrary they could also bring focus.
21. An area in which change is proposed is in relation to preliminary hearings, with the intention being that these should become standard practice unless the sheriff dispenses with one if, for example, the outcome of the FAI is likely to be purely formal. All of the 44 respondents who answered this question agreed that preliminary hearings should be held to help speed up the process of FAIs. Many respondents noted that preliminary hearings are already used in a number of other types of proceedings or pointed to the apparently successful use of preliminary hearings for FAIs in Edinburgh and Glasgow Sheriff Courts. Potential benefits of holding preliminary hearings identified by respondents included that administrative and practical matters could be dealt with early on, allowing subsequent efforts to focus on the most important issues.
22. Other options for speeding up FAIs covered in the proposals were: pre-hearing meetings of experts; hearing some business in sheriffs' chambers; the submission of evidence in advance; and transferring cases to a different sheriffdom. The significant majority of respondents agreed that having pre-hearing meetings of experts would help speed up FAIs (35 out of 37 respondents), that the submission of statements to the sheriff in advance should be permitted (32 out of 40 respondents), and that the sheriff principal should be able to transfer a case to a different sheriffdom if this was thought appropriate and might speed up the holding of the FAI (42 out of 44 respondents). However, relative to many other questions, views on whether hearing some business in sheriffs' chambers would help speed up FAIs were mixed, with 23 out of 37 respondents in agreement and some others seeking more information before feeling able to offer their support.
23. Further comments made often simply gave support for any measures that would help improve the speed and efficiency of FAIs, often suggesting that the proposals appeared to offer common sense solutions. The importance of ensuring that the needs of bereaved families are considered, including by keeping them informed of the progress of an FAI, was also stressed. A number of respondents noted that the impact on families and witnesses of transferring an FAI to a different sheriffdom would need to be given careful consideration. Other notes of caution included that care would need to be taken to ensure that the benefits derived from any of these measures justified the use of resources involved. The specific concern raised by those who opposed the use of sheriffs' chambers was that the openness and transparency of the process could be compromised.
24. In terms of the impact the proposals could have, respondents most frequently pointed to a quicker outcome being of benefit to all involved but especially to bereaved families at what will be a very stressful and distressing time. The other frequently identified positive impact was ensuring that any lessons are learned as soon as possible, thus reducing the likelihood of similar incidents occurring and, most critically, avoiding unnecessary deaths in the future.
Fatal Accident Inquiry accommodation
25. The consultation sought views on the use of ad hoc accommodation for FAIs, along with the possibility that all FAIs in Scotland might be held in dedicated centres. The majority of respondents agreed that FAIs should be dealt with in ad hoc locations (28 out of 39 respondents), and disagreed with the establishment of three bespoke, dedicated centres (29 out of 40 respondents). However, a small minority of respondents took the alternative view (11 out of 40), agreeing with the establishment of the three bespoke centres rather than the use of ad hoc locations.
26. Many of those who agreed with using ad hoc locations pointed to the need to make best use of the range of accommodation available, particularly if delays in holding FAIs can be reduced as a result. It was also suggested that taking an FAI out of the court setting could help avoid the Inquiry becoming adversarial in nature.
27. The principal objections to creating bespoke FAI centres were in relation to the impact on those attending the FAI, and bereaved families in particular. Those raising this concern often pointed to the inconvenience and possible costs incurred, as well as the possibility that people may feel more comfortable in familiar locations which are close to their support networks. There were also concerns that transfers could lead to some dilution of the principle that justice should be local or that there could be a loss of local knowledge from any of the parties involved, including the sheriff. Other respondents questioned whether establishing such centres was necessary (given the option to use ad hoc locations and the number of FAIs held), or whether the costs could be justified, particularly at a time when public sector budgets are under pressure.
28. However, others disagreed and suggested there could be organisational advantages to being able to concentrate FAI business. The potential to concentrate expertise, including through the opportunity for dedicated specialist sheriffs to conduct FAIs, was also raised.
29. In terms of the impact the proposals could have, some respondents noted that the impact on bereaved family members and witnesses will depend on how far they may have to travel to attend an FAI. A number also went on to suggest that any negative impacts (such as needing to pay travel or accommodation costs), must be mitigated.
30. The consultation included a proposal for all FAI determinations, subject to redaction, to appear on the Scottish Court Service website and be fully searchable. All but one of the 43 respondents who answered this question agreed with this proposal. In their further comments many suggested the proposed approach was common sense, would help improve transparency, would promote learning and is already common practice in any case.
31. A very large majority (41 out of 44 respondents), also thought that sheriffs should instruct the dissemination of their recommendations (if any) to the parties to whom they are addressed and any appropriate regulatory bodies. This was seen as consistent with an open and transparent approach, with the potential to learn lessons being maximised. However, it was also suggested that the majority of sheriffs do not support this approach and that ensuring a copy of the sheriff's determination is sent to the correct professional body is not a matter for legislation.
32. The third proposal relating to sheriffs' recommendations sets out that parties to whom sheriffs' recommendations are addressed should be obliged to respond to the sheriff who presided over the FAI indicating what action had been taken. This would be on the basis that those parties would not be obliged to comply with the sheriff's recommendations, but if they have not complied they would be obliged to explain why not. A clear majority of respondents (29 out of 44), agreed with the proposal.
33. Some suggested the proposed approach would help support an open and transparent process and would also introduce an element of public accountability. Others noted that there may be reasons why the sheriff's recommendations do not need to be acted upon or are not realistic or practical, but that there should be a public record to allow for an element of 'follow-up' and, in particular, to allow interested parties to find out why recommendations have not been acted on.
34. However, others took a different view and suggested that once the FAI has been completed the role of the sheriff should also conclude and it would not be appropriate for any response to or reporting on recommendations to be directed to the sheriff. From the practical perspective some commented that, even if it were appropriate, the resources are simply not available to allow sheriffs to undertake this role and that, in line with Lord Cullen's recommendations, responsibility should fall to the Scottish Government. Sheriffs would not have any role in monitoring or assessing compliance with their recommendations once their determination is issued.
35. Finally, some respondents expressed their disappointment that the Scottish Government was not taking a 'stronger' position on enforcement of recommendations.
36. In terms of the impact the proposals could have, a number of respondents were of the view that the proposals would have minimal or no impact on themselves or the area in which they worked. Where possible impact was identified, respondents generally pointed to serving the public interest by helping prevent repeated accidents and future deaths and that bereaved relatives may find some comfort if lessons are learned from the death of their loved one.
Legal aid for bereaved relatives
37. The Scottish Government proposes that the current legal aid arrangements for bereaved relatives would continue to apply. The majority of respondents agreed with this proposal (23 out of 36), although a significant minority did not. A number of respondents made a broad statement of support for the continued provision of legal aid to bereaved families where appropriate, and that it is important to ensure access to judicial proceedings for those who have a legitimate need to be represented but also that it is important to remain focused on FAIs being fact-finding rather than fault-finding exercises.
38. On the assessment of reasonableness, some agreed with Lord Cullen's recommendation that there is or may be a case for different or less stringent rules being applied and/or for legal aid limits being increased. However, others disagreed and thought the current 'reasonable test' remains appropriate.
Email: Marisa Strutt