Consultation on Proposals to Reform Fatal Accident Inquiries Legislation - Analysis of Consultation Responses

1 Introduction

1.1 This report presents an analysis of the views contained in responses to the Scottish Government's consultation on proposals to amend the legislation that governs Fatal Accident Inquiries (FAIs). The proposals would 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).

Background to the consultation

1.2 As the consultation paper notes, procurators fiscal investigate all sudden, suspicious, accidental and unexplained deaths to establish the cause of death and the circumstances which gave rise to the death. Fiscals carry out a full and thorough investigation into the circumstances and will decide what further procedure, if any, is required, including whether any criminal proceedings are necessary or whether it would be appropriate to instruct an FAI.

1.3 An FAI is an examination of the circumstances of a death to determine the time, place and cause of death. FAIs are mandatory for deaths that occur as a result of an accident in the course of employment or in legal custody, though the Lord Advocate is permitted to waive the necessity of holding an FAI if he considers that the circumstances of the death have been adequately investigated during criminal proceedings. A procurator fiscal, under the authority of the Lord Advocate, can instruct an FAI into other sudden or unexplained deaths, if it appears to the Lord Advocate that it would be in the public interest that an inquiry be held into the circumstances of a death which is sudden, suspicious or unexplained or has occurred in circumstances which give rise to serious public concern.

1.4 FAIs are fact-finding inquiries held in the public interest - they 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.

1.5 There are only around 50-70 FAIs per year, but over 13,000 deaths are reported to procurators fiscal each year. Therefore, the overwhelming majority of deaths investigated by procurators fiscal do not result in an FAI.

Focus of the consultation

1.6 Lord Cullen's Review sought to ensure that Scotland had an effective and practical system of public inquiry into deaths which was fit for the 21^st century. The Scottish Government agrees with the majority of the 36 recommendations made^[1], and some of those designed to address delays in holding FAIs have already been implemented by the Crown Office and Procurator Fiscal Service (COPFS). Many of the further recommendations that may be taken forward require primary legislation and the consultation focused on these issues. The areas covered are:

• Mandatory categories of FAIs;
• Deaths abroad;
• Delays;
• Fatal Accident Inquiry accommodation;
• Sheriffs' recommendations; and
• Legal aid for bereaved relatives.

Overview of responses

1.7 The consultation ran from the 1^st July to the 9^th September 2014, with a total of 58 consultation responses received. One response contained limited information, leaving 57 responses to be taken forward for analysis within this report.

1.8 A profile of respondents by type is set out in Table 1 below.

Table 1: Responses Received by Type of Respondent

1.9 Points to note about the respondent groups are:

• The insurance industry bodies or firms group is made up of three insurance companies and the Forum of Scottish Claims Managers.
• Five legal practices made a submission. The other respondents in the legal bodies or firms group are: the Association of Personal Injury Lawyers; the Faculty of Advocates; the Forum of Insurance Lawyers (Scotland); the Law Society of Scotland; the Scottish Civil Justice Council; the Scottish Legal Action Group; the Sheriffs' Association, the Sheriffs Principal; and the Society of Solicitor Advocates.
• Of the 15 public body respondents, 4 are part of the justice system (the Police Investigations and Review Commissioner, the Scottish Prison Service, the Scottish Court Service and the Scottish Legal Aid Board), 5 have a health focus (Glasgow City Community Health Partnership, the Mental Welfare Commission for Scotland, NHS Grampian, NHS National Services Scotland, and the Scottish Ambulance Service) and 2 have an equalities and human rights focus (the Equality and Human Rights Commission (EHRC) and the Scottish Human Rights Commission (SHRC)). The remaining public body respondents are the Care Inspectorate, the Health and Safety Executive (HSE), Network Rail Infrastructure Limited and the Scottish Public Service Ombudsman (SPSO).
• Of the 9 representative groups, 3 are trades union or trades union co-ordinating bodies (the National Union of Rail, Maritime and Transport Workers (RMT), the Scottish Trades Union Congress (STUC) and Unite), one is a professional body (Royal College of Psychiatrists in Scotland), and 5 are advice or advocacy groups (Action against Medical Accidents, Death Abroad -You're Not Alone (DAYNA), the Medical and Dental Defence Union of Scotland (MDDUS), Scotland's Campaign against Irresponsible Drivers (SCID) and Victim Support Scotland).
• Individual respondents include members of the legal profession, including a current and a former member of the Scottish judiciary (Lord Cullen), other interested members of the public, and an MSP.

1.10 A list of the organisations that submitted a response to the consultation is included as an annex to this report.

Structure of the report

1.11 The remainder of this report presents a question by question analysis of responses given at each of the questions set out in the consultation document. Again mirroring the consultation document, the analysis is represented in six sections.

1.12 Each section of the report begins with a summary of the information provided on the relevant issues within the consultation paper. Given the complexity of some of the issues being considered, readers may find it useful to refer to the original consultation paper for further detail. The paper remains available on the Scottish Government's website^[2].

1.13 The results of the 'Yes/No' questions are presented in tabular form. Please note that a small number of respondents did not make their submission on the consultation questionnaire, but submitted their comments in another format. When these responses contained clear answers to one or more of the 'Yes/No' questions these have been recorded. The remaining content was analysed under the most directly relevant consultation question.

1.14 The focus of the analysis presented here is very much on the issues covered in the Scottish Government's consultation paper. Some respondents raised a range of other issues connected with FAIs and all of these submissions have been reviewed by the relevant policy team within the Scottish Government. This also applies to comments made within responses which are not to be published at the respondent's request.