Out-Law News | 15 Dec 2015 | 12:48 pm | 2 min. read
The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill introduces mandatory FAIs for new categories of deaths, and will also allow for discretionary FAIs into the deaths of Scots abroad. Once in force, the bill will also introduce procedural modifications including the power to reopen an FAI if new evidence arises, and more flexibility over where FAIs may be held.
Paul Wheelhouse, the Scottish Government's minister for community safety and legal affairs, said that the bill would "strengthen FAI legislation and bring it into the 21st century". However, litigation expert Craig Connal of Pinsent Masons, the law firm behind Out-Law.com, described the reforms as a "mixed bag".
"The bill ranges from points which would be difficult to argue against, such as compulsory FAIs for deaths of children in secure accommodation, to provisions of more debateable value," he said. "Will discretionary inquiries into deaths abroad in reality do more than provide a source of litigation over adverse decisions? Making parties respond to inquiry recommendations likewise seems designed to provoke expense and debate."
"The jury is out on whether the overall package will shift the process back to where it should be - an investigation in the public interest - and away from being a means for those wishing to sue to unearth information. Having said that, the less headline-grabbing parts of the package are aimed at making the process more efficient and up-to-date. For these, there can be nothing but a warm welcome," he said.
An FAI is a fact-finding process through which the circumstances of some deaths occurring in Scotland are investigated and determined. Currently, an FAI must take place when someone dies in custody or 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.
Of the approximately 11,000 deaths reported to the Crown Office and Procurator Fiscal Service (COPFS) in Scotland each year, an FAI is held in between 50 and 60 of cases. In around a third of these, the sheriff makes recommendations, including for precautions that could be taken to prevent deaths in similar circumstances in the future. The bill will place the individuals and organisations subject to these recommendations under a legal duty to respond, setting out whether they have followed these recommendations or why they have chosen not to do so.
The bill extends the categories of death in which it is mandatory to hold an FAI to cover those arrested or detained by the police at the time of death, regardless of where the death takes place; and the deaths of children in secure care. It will also permit 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 Crown Office will also introduce a 'family liaison charter' alongside the bill, which will ensure that bereaved families are kept fully informed of the progress of a death investigation and the likelihood of criminal proceedings or an 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 soldiers in Scotland, which would require a change to UK law as it relates to defence.