Out-Law News 2 min. read
04 Jul 2014, 2:30 pm
The reforms will implement the remaining recommendations of a 2009 review of FAI legislation, carried out by Lord Cullen; as well as building on those that have already been implemented by the Crown Office and Procurator Fiscal Service (COPFS). A new consultation published by the Scottish government proposes extending the categories of death in which it is mandatory to hold an FAI; taking FAIs out of court buildings and into more suitable accomodation; and permitting discretionary FAIs into deaths of Scots abroad where the body is repatriated.
"This consultation is designed to ultimately develop a policy that streamlines the FAI process to ensure it is more efficient and robust," MacAskill said.
"In 2008, the Scottish government commissioned an independent review into the legislation around FAIs in Scotland led by Lord Cullen. The process was designed to ensure that the FAI system was fit for purpose in the light of changes to other parts of the justice system. Lord Cullen made 36 recommendations; some of these were the responsibility of COPFS. These have been implemented through the formation of the Scottish Fatalities Investigation Unit. However, this consultation will build on these changes and give further consideration to other vital areas," he said.
However, he confirmed that the planned legislation would not include a mandatory time limit within which an FAI must begin or speed up decisions over FAIs where criminal charges or regulatory investigations must be carried out. In Scotland, an FAI cannot begin until a decision has been made over whether to proceed with a criminal case or regulatory investigation.
An FAI is a judicial process which investigates and determines the circumstances of some deaths occurring in Scotland. Currently, an FAI must take place when someone dies in custody in prison or in a police station, or a death is caused by an accident at work. They can be held in other circumstances if it is thought to be in the public interest. FAIs take place before a sheriff, who is required to produce a determination setting out time, place and cause of death, and any precautions or defects in the system which could have prevented the death.
The consultation proposes retaining the existing requirement to carry out an FAI in relation to work-related accidental deaths, although the Scottish government has rejected a suggestion that would have brought work-related diseases within the scope of the regime. It also proposes updating and extending the mandatory category of deaths of persons in "lawful custody" to include those arrested or detained by the police at the time of death; and the deaths of children in secure care.
The proposed new regime would also permit discretionary FAIs to take place into the deaths of Scots abroad where the body is repatriated to Scotland, which would bring the system more into line with that operated by the coroner's service in England and Wales. It has already introduced legislation permitting FAIs to be held in Scotland into deaths of Scottish domiciled service personnel abroad. Such case will require discussions between the Lord Advocate and the UK defence secretary, but it is "expected" that the wishes of affected families will be respected.
Although noting that in certain circumstances delays to the beginning of the FAI process are inevitable, the consultation asks respondents whether they support the Scottish government's view not to introduce mandatory time limits. Instead, the consultation proposes the introduction of preliminary hearings unless dispensed with by the sheriff. These hearings would be designed to ensure that the FAI achieves its objective of determining the circumstances of the death and doing so in a manner which is "fair, expeditious and effective", according to the consultation.
The consultation also proposes introducing a requirement for those to whom sheriffs direct recommendations at the conclusion of an FAI to respond. Those parties would not be obliged to comply with the sheriff's recommendations, but would be expected to explain why not in their response. Sheriffs would also be placed under a new duty to ensure that their recommendations were disseminated to any party to the inquiry and to any relevant regulatory body.