PI Brief Update

A Look at the New Fatal Accident Inquiries Legislation in Scotland - Jonathan Cornwell, Brodies

14/01/16. Fatal Accident Inquiries (FAIs) featured prominently in the Scottish mainstream media during 2015. Following the tragic events of 22nd December 2014 (when a bin lorry collided with pedestrians in Glasgow city centre killing 6 people and injuring 15 others), the decision of the Crown Office and Procurator Fiscal Service not to prosecute the driver and the subsequent Fatal Accident Inquiry meant that the subject was rarely far from the headlines.

An FAI is the fact-finding process, utilised in Scotland, through which the circumstances of certain deaths are investigated and determined. It is broadly equivalent to an English Coroner’s Inquest. An FAI takes place before a sheriff, who is required to produce a determination setting out the time, place and cause of death, and anything which could have prevented the death. An FAI is mandatory for deaths resulting from an accident in the course of employment or in legal custody. It is discretionary where the Lord Advocate deems it to be in the public interest that an inquiry should be held into the circumstances of a death on the ground that it was sudden, suspicious or unexplained; or if it has occurred in circumstances that give rise to serious public concern. Even where a death falls into the mandatory category above, the Lord Advocate can decide there will be no FAI if there have been criminal proceedings and he is satisfied that the circumstances of the death have been sufficiently established in the course of those proceedings.

The existing legislation – the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 – has long been considered inadequate. As far back as 2008, Parliament debated these inadequacies Seven years later, in 2015 two bills were introduced to the Scottish Parliament intended to overhaul the current system of FAIs and to address its perceived shortcomings. The Scottish Government published the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. This contained practical measures intended to ensure a system which is “effective, efficient and fair”. A second bill was introduced by Patricia Ferguson MSP the contents of which went significantly beyond what was proposed in the Government’s Bill which she described as, “tinkering at the edges of this legislation”. In her view there needed to be “a fundamental overhaul of the system”.

One common criticism of the process was that the families of the deceased were not central to it, nor did they take a role in shaping the scope of the inquiry. The lack of transparency and failure to involve the family of the deceased was something that both bills sought to address. Critics also made reference to the delays encountered. The inquiry process was often significantly delayed by a pending criminal investigation and prosecution (although that was notably not the case in the accident mentioned above).

Both Bills were before the Scottish Parliament until September 2015 when, “in the spirit of collaboration”, Patricia Ferguson agreed to withdraw her bill and to work with the Government on amendments to its bill. That Bill was passed on the 11th December 2015 and contains some, but not all of the reforms, sought in the private member’s bill.

It is widely agreed that investigations should go beyond establishing the cause of the death, to learning lessons from the death in order to prevent further occurrences. In around one third of the FAIs held in Scotland each year the Sheriff makes recommendations intended to prevent similar accidents or deaths occurring in the future. Under the Bill individuals and organisations will now have a legal duty to respond to the FAI setting out whether they have followed these recommendations or why they have chosen not to.

The criticism of the lack of involvement of the deceased’s family has been addressed by the introduction of a “Family Liaison Charter”. This is intended to ensure that bereaved families are kept informed of the progress of investigations and whether there will be a criminal prosecution or an FAI.

The Bill extends the category of mandatory FAIs to include those arrested or detained by the police at the time of death (regardless of the location) and to the deaths of children in secure care. It also permits discretionary FAIs to take place into the deaths of Scots abroad (even where the body is not repatriated to Scotland) provided that the Lord Advocate considers that any investigations already carried out have not sufficiently established cause of death and there is a real prospect that the full circumstances would be established at the FAI.

The Scottish Government also announced that it had reached an 'agreement in principle' with the UK Government to extend mandatory FAIs to deaths of service personnel in Scotland. This new measure is not included in the Bill as it relates to defence, which is reserved to the UK Government. Instead it will be enacted by a UK Order under section 104 of the Scotland Act 1998.

The other most notable provision of the Bill is that it allows an FAI to be re-opened if new evidence arises and for a fresh FAI to be held if that new evidence is substantial enough.

The fact that the Bill was passed unanimously demonstrates the consensus of opinion that change to the existing system was long overdue. However, there was still criticism in some quarters that the Bill does not go far enough and particular criticism that there is no automatic right to legal aid for the families of the deceased. It is widely agreed that the Bill goes some way to modernising the system and that it should make for a more efficient process. The other consequences of the Bill’s proposals (intended or otherwise) remain to be seen.

Jonathan Cornwell is a Partner with the personal injury, pursuer team, at Brodies LLP

Image cc flickr.com/photos/terinea/536128972