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

3 Deaths abroad

3.1 The consultation paper notes that, under the current legislation, there is no provision to hold an FAI into the death of a person domiciled in Scotland who dies abroad, even if the body is repatriated to Scotland. In England and Wales, a coroner who is made aware that the body of a deceased person is within that coroner's area must, as soon as practicable, conduct an investigation into the person's death if: the deceased died a violent or unnatural death; the cause of death is unknown; or the deceased died while in custody or otherwise in state detention. This applies even where the death occurs abroad, but the body has been repatriated to the area of a particular coroner.

3.2 Lord Cullen expressed the view that it would be unjustifiable to hold mandatory FAIs into the deaths of all Scots who happen to die or are killed abroad. He recommended, however, that, where the body of a person domiciled in Scotland who dies abroad is repatriated, an FAI should be held at the discretion of the Lord Advocate and that the Lord Advocate should consider "whether there had been circumstances which called for investigation, whether there had been a satisfactory investigation [in the country where the death took place] and whether there was a prospect of an FAI yielding significant findings." Lord Cullen thought that, out of respect for the investigating authorities in the foreign jurisdiction, such discretion might be exercised rarely.

3.3 The Scottish Government accepted this recommendation and proposes that the power to hold an FAI into the death of a person domiciled in Scotland who dies or is killed abroad should be at the discretion of the Lord Advocate and should only apply where the body has been repatriated to Scotland.

Question 7: Should the Lord Advocate have discretion to hold an FAI into the death of a person domiciled in Scotland who dies abroad where the body is repatriated to Scotland?

3.4 Question 7 asked if the Lord Advocate should have discretion to hold an FAI into the death of a person domiciled in Scotland who dies abroad where the body is repatriated to Scotland. The overwhelming majority of those who answered this question agreed that the Lord Advocate should have this discretion. Responses are summarised in Table 7 below.

Table 7: Question 7 - Response by Respondent Type

Respondent Type	Yes	No	Not Answered No View	Total
Insurance industry bodies or firms	-	-	4	4
Legal bodies or firms	10	-	4	14
Local authorities	3	-	4	7
Public bodies	7	1	7	15
Representative groups	5	-	4	9
Total Organisations	(25)	(1)	(23)	(49)
Individuals	6	-	2	8
TOTAL	31	1	25	57

3.5 Twenty respondents made a further comment. Points raised included that, as is already the case in England and Wales, it would be appropriate to have powers in relation to deaths abroad for Scotland, particularly as Scots travel and work abroad in increasing numbers. However, it was also noted that any powers are not likely to be used extensively and only on the basis of public interest considerations. For example, it was suggested that any recommendations made regarding activity or travel abroad might minimise the risk of the occurrence of a similar death in the future. The STUC noted their particular interest in work-related deaths of UK citizens occurring abroad.

3.6 Other respondents also commented on the conditions under which such an FAI might be held, generally noting their agreement to the caveats outlined by Lord Cullen. Bob Doris MSP suggested that:

"…the Lord Advocate's decision should, except in very exceptional circumstances, be informed by a post-mortem, a family statement, and recovery of any relevant documents from the country of death."

3.7 A small number of respondents noted issues that will need to be considered or addressed if introducing this proposal. These were:

• Primary legislation to define the circumstances in which such a power could or should be exercised will be required.
• Information regarding the range and capacity of the inquiry, including any problems which may occur in respect to cross-border co-operation, should be given to bereaved families to ensure that they have realistic expectations.
• In cases where an FAI is not deemed necessary, bereaved families will still need support, possibly from Victim Support Scotland but also from police liaison officers.

3.8 Finally, other notes of caution were introduced, including that bereaved families may indeed have an expectation that an FAI will deliver more than is likely to be the case and that, in reality, an FAI may result in little more than a formal finding of place, time and manner of death. The Police Investigations and Review Commissioner suggested that little is likely to be gained from introducing these proposals and that if a country has not undertaken a competent investigation it will also be unlikely to co-operate with an FAI held in Scotland.

Question 7a: If you answered 'yes' to question 7, should the criteria to consider include:

(I) Whether there had been circumstances which called for investigation.

(II) Whether there had been a satisfactory investigation (in the country where the death took place).

(III) Whether there was a prospect of an FAI yielding significant findings.

3.9 Amongst those respondents who answered question 7a, the majority agreed with all three of the criteria suggested, although a small number did not agree with the second criterion. Responses are summarised in Table 8 below.

Table 8: Question 7a - Response by Respondent Type

Respondent Type	(I)			(II)			(III)
	Yes	No	N/A	Yes	No	N/A	Yes	No	N/A
Insurance industry bodies or firms	-	-	4	-	-	4	-	-	4
Legal bodies or firms	8	1	5	7	2	5	8	1	5
Local authorities	2	-	5	1	1	5	1	-	6
Public bodies	7	-	8	6	1	8	7	-	8
Representative groups	5	-	4	5	-	4	5	-	4
Total Organisations	(22)	(1)	(26)	(19)	(4)	(26)	(21)	(1)	(27)
Individuals	6	-	2	5	1	2	6	-	2
TOTAL	28	1	28	24	5	28	27	1	29

3.10 Only six respondents went on to make a further comment. The principle issue raised was in relation to the second criterion - whether there had been a satisfactory investigation (in the country where the death took place) - and how an assessment could be made as to whether a satisfactory investigation had been carried out. For example, The Law Society of Scotland noted that:

"…there will be a requirement for primary legislation to define in clear terms the circumstances in which such a power could or should be exercised. The determination as to when and in what circumstances such an inquiry should be sought must be based solely upon public interest considerations."

3.11 A broader concern was that the criteria could be used as loopholes, providing the Crown with justifications for not carrying out an FAI even if such an FAI might have been worthwhile.

3.12 Finally, it was suggested that any decision to hold an inquiry or not should involve the bereaved family and that there should be a duty on the Lord Advocate to provide the family with full explanation if there is a decision not to proceed.

Question 8: What impact do you think this proposal will have on you, your organisation or community?

3.13 Twenty five respondents commented on the impact the proposals could have on themselves as individuals, their organisation or their community. A number of respondents anticipated that there would be little if any impact on themselves or their organisation.

3.14 The most frequently raised issues were the practical and resource implications of introducing these proposals. In terms of the practical challenges, the Sheriffs' Association commented on the possible impact on COPFS, not least because of the likely complexity of any enquiries they are undertaking. An example of specific activity that could be required was translation of documentary productions.

3.15 In terms of the cost implications, some respondents suggested that these could be high. It was also noted that there could be implications for the Legal Aid budget if increased numbers of people were seeking support for representation in an FAI. HSE noted that there could also be resource implications for their organisation.

3.16 Some respondents identified positive impacts that the proposals could have, including that they offered to opportunity to offer support and bring solace to bereaved families at an extraordinarily difficult time. DAYNA explained that:

"Knowing the facts surrounding the death of a loved one can be imperative for bringing 'closure' to such an experience."

3.17 It was also suggested that the change would help promote confidence in the Scottish justice system and be compliant with Articles 2 and 8 of the European Convention on Human Rights.

3.18 Finally, it was suggested that any learning from FAIs could help protect UK citizens travelling or working abroad, particular in countries with less developed health and safety systems in place.