Review of the Fatal Accident Inquiry Legislation

Introduction

I was appointed by the Scottish Government to review the operation of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. My aim has been to set out practical measures for a system for inquiry into fatalities that is effective, efficient and fair.

I am grateful for the strong response to the consultation paper which was issued by the Review in November of last year and to a number of people who supported the work of the Review in various ways, including Lynn Dempster, Kate Gray and Raymond Wright, who, when required, provided administrative assistance to the Review. I would like to pay particular tribute to Andrew P Mackenzie, the secretary to the Review, for his diligent, constructive and imaginative work which I greatly appreciated.

In carrying out my review I have not only examined the procedure for fatal accident inquiries (FAIs) from the stage of application for them, but also considered the arrangements for preparation. I have also considered whether the scope for fatal accident inquiries and their mandatory application should be altered. I do not intend this morning to go over all of my recommendations, but I will highlight some of the main ones.

Effectiveness

While I am in favour of sheriffs continuing to take FAIs and in the locality to which they relate, I have recommended that, 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 where it is to be held (para 3.17).

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 (para 6.29).

As I point out in my report, implicit in the existing legislation is that an FAI is held for the purpose of informing the public and relatives as to the circumstances in which a deceased person died. If that purpose is to be fully achieved, the need for action to prevent further fatalities may have to be brought home to a party to an FAI, and the lessons of the case disseminated.

With this in view, I have recommended that sheriffs should have an explicit power to make recommendations to a party to the FAI, who should have a duty to respond in writing within a set period. The Scottish Government should publish such recommendations and the responses to them, both on the internet and in an annual report to the Scottish and the United Kingdom Parliaments. The sheriff should also have the power to make recommendations, or direct the copying of his or her determination, to any body concerned with safety which has an interest in the circumstances of the case (paras 3.32, 8.25, 8.26 and 8.28).

Efficiency

The adequacy of skill, resources and attention which is devoted by the COPFS to the preparation for FAIs is critical in avoiding unnecessary delay in the preparation for FAIs and obtaining appropriate expert evidence for them.

I am in favour of there being a central FAI team in Crown Office for overseeing progress from the outset in all cases in which an FAI is mandatory or is likely to be recommended for a discretionary FAI, ensuring that the investigation and preparation is supported by adequate resources, giving guidance in the light of previous FAIs, including the choice of expert witnesses, and ensuring the preparation is as expeditious as possible (para 6.15).

This should be complemented by the central FAI team having the responsibility for ensuring that the knowledge, skills and experience of procurators fiscal for FAI work is adequate; overseeing training; and setting performance standards (para 3.44).

Management of FAIs by sheriffs is also important. The issues for the FAI, to form the framework for the leading of evidence, should be settled by the sheriff at a preliminary hearing, which should become the normal precursor to the FAI itself. This and the advance circulating of material should assist the sheriff in arriving at a realistic assessment as to the time which the FAI should take (paras 6.30 and 6.31).

I have also recommended that, in cases where 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 (para 6.22).

Fairness

First, I refer to those who may be the subject of criticism in the FAI. Fairness requires that they have adequate notice of matters which may give rise to possible criticism. I refer again to what I have said about the settling of the issues and the advance circulation of material.

Secondly, the holding of an FAI in a courtroom, and the way in which it is conducted, may be disconcerting to relatives and to those who are the subject of potential criticism, in a way which cannot be justified in proceedings which should have as their aim fact-finding. At the same time I recognise that there may well be occasions when it necessary for a witness who is evasive to be robustly cross examined, and for others to be pressed as to what could have been done to prevent the accident which led to the death. I have recommended that, where possible, FAIs should not be held in a courtroom, and where that is unavoidable, it should be one which has the least connection with criminal proceedings. Sheriffs should discourage the hostile questioning of witnesses save where it is essential for ascertaining the true circumstances of the death (para 3.13).

Thirdly, I turn again to the relatives of the deceased. They are already recognised participants in FAIs. I have recommended that for their assistance officers of the Victim Information and Advice section of the COPFS should have training in FAIs (para 6.57), that relatives should not have to justify the reasonableness of the granting of legal aid for their representation, and that 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 (para 6.46). Where, on the other hand, the Lord Advocate has decides not to apply for an FAI, the relatives should be given, if they wish, written reasons for that decision (para 5.11).

Scope

The Lord Advocate should have power to apply for an FAI into the deaths of persons normally resident in Scotland where the body is repatriated to Scotland (excluding, that is, cases for which provision is to be made in the Coroners and Justice Bill before the United Kingdom Parliament) (para 4.43).

I have made various recommendations for the extension of the category of case in which an FAI is mandatory (paras 4.14, 4.20 and 4.27).

While the finality of a determination by a sheriff is important, it should be open to the Lord Advocate to apply for fresh FAI proceedings where he or she is satisfied that certain conditions relating to evidence have been met and that it is in the public interest that such evidence should be considered (para 9.8).