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

6 Sheriffs' recommendations

6.1 As the consultation paper notes, in an FAI, it is the role of the sheriff to determine the time, place and cause of death and the circumstances surrounding it. The sheriff can also make recommendations as to how deaths in similar circumstances may be avoided in the future, and this happens in around a third of all FAIs. These recommendations can be used to learn lessons in the public interest. This section of the consultation looked how those recommendations should be disseminated and acted upon.

6.2 It also considered the issue of the enforcement of sheriffs' recommendations, very much within the Patricia Ferguson MSP's proposed Inquiries into Deaths (Scotland) Bill, which proposed that recommendations should be legally binding. Lord Cullen did not recommend that sheriffs' recommendations should be legally binding. He did recommend that the entity or body to whom a recommendation is directed should be under a duty to make a written response to the Scottish Government (within a period set by the sheriff) stating whether and to what extent it has implemented, or intends to implement, the recommendation or, if not, for what reason or reasons. Where implementation is stated as intended, Lord Cullen thought that there should be a further duty thereafter to confirm its implementation.

6.3 Under the existing legislation Scottish Ministers have no powers to enforce recommendations made at FAIs, which are not in any case legally binding on the parties to whom they are addressed.

Disseminating recommendations

6.4 The specific proposal here is for all FAI determinations, subject to redaction, to appear on the Scottish Court Service website and be fully searchable. In proposing this option, the Scottish Government is suggesting a different approach to that recommended by Lord Cullen. The consultation paper explains that Lord Cullen's recommendation was for the Scottish Government webpage to be revived and updated to show the text of sheriffs' recommendations, to whom it was directed and its reasons, with a link to the full text of the determination on the Scottish Court Service website.

6.5 The Scottish Government also does not intend to proceed with Lord Cullen's recommendation for an annual report covering the range of matters considered by FAIs in any particular year.

Question 19: Should it be mandatory for all FAI determinations, subject to redaction, to appear on the Scottish Court Service website and be fully searchable?

6.6 All but one of the respondents who answered this question agreed that all FAI determinations, subject to redaction, should appear on the Scottish Court Service website and be fully searchable. Responses are set out in Table 17 below.

Table 17: Question 19 - Response by Respondent Type

Respondent Type	Yes	No	Not Answered No View	Total
Insurance industry bodies or firms	4	-	-	4
Legal bodies or firms	12	-	2	14
Local authorities	6	-	1	7
Public bodies	7	1	7	15
Representative groups	7	-	2	9
Total Organisations	(36)	(1)	(12)	(49)
Individuals	6	-	2	8
TOTAL	42	1	14	57

6.7 Thirty two respondents made a further comment. The position of many can be summarised as considering the proposal to offer a common sense approach which would help improve transparency and promote learning and which is already common practice. In particular, it was suggested it would make it easier to check if the recommendations from previous FAIs had been carried out and could also improve public safety by alerting people to possible dangers. It was also suggested that the approach helps highlight some of the long delays that can occur between the death and an FAI taking place.

6.8 Lord Cullen himself also commented on this proposal, noting that if the Scottish Government remains opposed to the recommendation made in the Review (i.e. that recording and publication should be on the Scottish Government's website), then it should be mandatory for all FAI determinations to appear on the Scottish Court Service website.

6.9 A small number of respondents commented on the redaction issue, with the view being that redaction should only be used in rare instances and protect people who may be harmed, or subjected to pressure. For example, the Association of Personal Injury Lawyers was unclear as to why a wide-ranging provision for redaction would be required and suggested:

"If the FAI was held publicly, there is no reason why there should be provision for the published determinations to be redacted in all cases. This will limit the usefulness of such determinations. We agree, however, that in certain cases, such as those involving children, there should be provision for redaction."

6.10 One Legal Firm Respondent (DAC Beachcroft (Scotland) LLP Solicitors), took a slightly different position in suggesting that there may be some very sensitive cases where even with redaction mandatory online publication may be inappropriate.

6.11 Finally, suggestions as to facilities or content the website should offer were that:

• The Scottish Government website should contain a link to the Scottish Court Service website for the information of the public.
• The search facility should allow for searches for all determinations relating to a particular type of death (the name of the parties is currently the only search field).
• The determinations should also include a list of organisations or individuals to whom the sheriff has directed recommendations along with the responses to the sheriffs' recommendations.
• Lord Cullen restated his recommendation for annual reporting on the information to the Scottish and UK parliaments.

Question 20: Do you think that sheriffs should instruct the dissemination of their recommendations (if any) to the parties to whom they are addressed and any appropriate regulatory bodies?

6.12 The overwhelming majority of those who answered this question thought that sheriffs should instruct the dissemination of their recommendations (if any) to the parties to whom they are addressed and any appropriate regulatory bodies. Responses are set out in Table 18 below.

Table 18: Question 20 - Response by Respondent Type

Respondent Type	Yes	No	Not Answered No View	Total
Insurance industry bodies or firms	4	-	-	4
Legal bodies or firms	11	2	1	14
Local authorities	5	1	1	7
Public bodies	9	-	6	15
Representative groups	7	-	2	9
Total Organisations	(36)	(3)	(10)	(49)
Individuals	5	-	3	8
TOTAL	41	3	13	57

6.13 Thirty four respondents made a further comment. Many of the comments covered similar issues to those raised at Question 19, namely that the proposal seems consistent with an open and transparent approach and that the potential to learn lessons is maximised. The 'common sense' requirement to ensure that all relevant parties are aware of the findings was highlighted, with Sheriff Crowe commenting that:

"It may be that those criticised have not been parties at the Inquiry and there is no point addressing recommendations to individuals who do not have matters brought to their attention."

6.14 The particular need to employ a structured approach to ensure that the appropriate regulatory bodies are aware of any recommendations made by the sheriff was also noted, although the Scottish Legal Action Group suggested that it should be within the presiding sheriff's discretion as to whether dissemination is necessary or appropriate.

6.15 Issues raised by those who disagreed that sheriffs should instruct the dissemination of their recommendations included that this may risk prejudicing any subsequent criminal trial or that the findings of FAIs are already widely distributed. The Sheriffs' Association reported that the majority of sheriffs do not support this approach reporting that:

"Sheriffs can and do already instruct that copies of their determinations should be brought to the attention of the appropriate professional or government bodies for such action as they deem appropriate… Ensuring that a copy of the sheriff's determination is sent to the correct professional body is not a matter for legislation."

6.16 Practical suggestions made by those who did support the approach set out at Question 20 were that:

• Where recommendations have been made as a result of a workplace fatality, there should be some mechanism whereby the Crown or HSE checks whether there has been compliance with the recommendations.
• If any of the parties found to have caused an accident is regulated by a professional body (such as the General Medical Council), that professional body should be alerted to the findings.

Question 21: Do you agree that parties to whom sheriffs' recommendations are addressed should be obliged to respond to the sheriff who presided over the FAI indicating what action had been taken? This would be on the basis that those parties would not be obliged to comply with the sheriff's recommendations, but if they have not complied they would be obliged to explain why not?

6.17 A clear majority of respondents who answered this question agreed that parties to whom sheriffs' recommendations are addressed should be obliged to respond to the sheriff indicating what action had been taken. However, a significant minority, including the majority of Legal Bodies or Firms respondents, disagreed. Responses are set out in Table 19 below.

Table 19: Question 21 - Response by Respondent Type

Respondent Type	Yes	No	Not Answered No View	Total
Insurance industry bodies or firms	4	-	-	4
Legal bodies or firms	5	8	1	14
Local authorities	4	1	2	7
Public bodies	6	2	7	15
Representative groups	5	2	2	9
Total Organisation	(24)	(13)	(12)	(49)
Individuals	5	2	1	8
TOTAL	29	15	13	57

6.18 Forty one respondents made a further comment. As at the earlier questions in this section, some respondents suggested this approach would help support an open and transparent process and would also introduce an element of public accountability. A number of respondents pointed to it being in the public interest to have a clear record of the recommendations made and any actions taken in response, with the Society of Solicitor Advocates of the view that:

"If an inquiry has been held in public and, on the evidence and having heard interested parties, the court has reached certain conclusions and made recommendations, it ought at the very least to be a matter of record whether or not the recommendations are to be followed, and, if not, why not."

6.19 Others noted that there may be reasons why the sheriff's recommendations do not need to be acted upon or are not realistic or practical but that there should be a public record to allow for an element of 'follow-up' and in particular allow interested parties to find out why recommendations have not been acted on. It was also suggested that parties may be more likely to take action if they would otherwise be expected to explain why they had not. Specific suggestions as to how these proposals should be implemented included that anyone to whom a recommendation is directed, should be consulted by the sheriff ahead of its release. In his consultation response, Lord Cullen suggested that he would agree to the proposal on the basis that the sheriff would transmit the responses to the Scottish Court Service for inclusion in its website.

6.20 Similarly, the STUC did not wholly agree with the Scottish Government's proposed approach and, along with some of the respondents who disagreed with the proposal, called for sheriffs to be given the power to ensure that their recommendations are implemented. Unite was of the view that:

"…without additional powers to legally enforce recommendations pertaining from the Sheriff's determination, the FAI is a constrained instrument. It can diagnose the problems which contributed to the fatality but cannot legally implement the necessary change to prevent reoccurrence."

6.21 Other issues raised by those wishing the Scottish Government to take a 'stronger' position on enforcement of recommendations included that the Government should make strong representations to the UK Government where a public body's functions relate to reserved legislation and action or legislative change is required to implement a recommendation coming out of an FAI. It was also suggested that the Scottish Government could disqualify those who do not respond to sheriff's recommendations from being awarded public sector contracts.

6.22 Whilst some respondents, and particularly Union respondents, called for sheriffs to have greater powers, a group of other largely Legal Body or Firm Respondents took a very different view. Although there was variation in position, the general stance was that once the FAI has been completed the role of the sheriff should also conclude and that, in particular, it would not be appropriate for any response to or reporting on recommendations to be directed to the sheriff. The Law Society of Scotland, the Scottish Court Service, the Sheriffs' Association and the Sheriffs Principal were amongst the respondents taking this view. The Sheriffs Principal noted that this was an issue of both principle and practicality. On the point of principle they commented that:

"…the role of the sheriff in an FAI is essentially a judicial one, namely to make a determination setting out the circumstances of the death so far as established to his satisfaction on the basis of the evidence adduced before him, the primary responsibility for which lies with the procurator fiscal."

6.23 From the practical perspective they were amongst those suggesting that, even if it were appropriate, the resources are simply not available to allow sheriffs to undertake this role and that, in line with Lord Cullen's recommendations, responsibility should fall to the Scottish Government. The Scottish Legal Action Group suggested that the Government could establish a small department whose duty it was to monitor these issues. Given the number of FAIs which are held, and that not all result in recommendations being made, it was suggested that the volume of work would not be onerous.

Question 22: What impact do you think that the proposals regarding sheriffs' recommendations will have on you, your organisation or community?

6.24 Thirty one respondents commented on the impact the proposals might have on themselves as individuals, their organisation or their community. A number of respondents were of the view that the proposals would have minimal or no impact on themselves or the area in which they worked. Those taking this view ranged across the respondent types and included 4 Insurance Industry respondents and well as a small number of Public Bodies, Local Authorities, and Legal Bodies or Firms.

6.25 Where possible impact was identified, respondents generally pointed to serving the public interest by helping prevent repeat accidents and future deaths and that bereaved relatives may find some comfort if lessons are learned from the death of their loved one.

6.26 Finally, one Legal Firm Respondent (DAC Beachcroft (Scotland) LLP Solicitors) suggested that if a sheriff makes a recommendation that is specifically "disseminated" to a party any criminal prosecution could be prejudiced by the party being forced to give responses which might subsequently be used in evidence against them at a criminal trial.