Listen
Review of fatal accident inquiries
07/03/2008
The legislation which has governed the operation of fatal accident inquiries (FAIs) in Scotland for over 30 years is to be reviewed.
Justice Secretary Kenny MacAskill and the Lord Advocate, Elish Angiolini have agreed that Lord Cullen of Whitekirk should lead a review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
The review, which is expected to take around a year, will examine the operation of judicial inquiries into sudden, suspicious or unexplained deaths. The legislation is now over 30 years old and the review will ensure that the FAI system continues to be fit for purpose in the light of changes to other parts of the justice system.
It will consider whether the sheriff court is the right forum for such investigations and how FAIs interact with other inquiries such as those by the Health and Safety Executive.
The review is expected to make recommendations for possible amendments to the primary and secondary legislation governing FAIs, to ensure that they continue to provide an effective, robust, and proportionate system for those using them.
Kenny MacAskill said:
"Sudden, suspicious or unexplained deaths can have a traumatic effect on the people left behind. The FAI system in Scotland has played an important role in helping provide closure to people affected by these circumstances.
"However, the legislation on fatal accident inquiries is now over 30 years old and the time is right for a review of how the system works in practice in the light of changes which have been made to other parts of the justice system.
"Although we believe the system generally works well and has served Scotland well in the main, concerns have been raised about it in recent years, particularly about delays in the system and how the implementation of Sheriff's recommendations are monitored.
"The Scottish Government has listened to these concerns and that is why we want to see a more fundamental examination of the fatal accident inquiry system. This review will establish whether it provides a robust, but proportionate means of judicial inquiry of sudden, accidental, unexpected or unexplained deaths in the public interest and, if not, what should take its place.
"I expect the review to lead to improvements in the law and result in a more structured system for fatal accident inquiries.
"I look forward with interest to seeing the review's recommendations next year."
Elish Angiolini, QC, said:
"This review will ensure the legislation is fit for purpose for the next 30 years, and allow all parts of the system to develop and improve the work we do in this very important and sensitive area."
"The Crown Office and Procurator Fiscal Service recently issued revised guidelines and training for all staff involved in the investigation of sudden and unexplained deaths, including instruction in relation to Fatal Accident Inquiries. I am determined to ensure that we deliver the best possible, professional and responsive service."
Lord Cullen of Whitekirk said:
"It is important that the way in which inquiries into fatal accidents are handled is responsive to the needs and expectations of the public in a changing world. I am very much looking forward to the challenge of undertaking this review"
The review will have the following remit:
To review the operation of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976, which governs the system of judicial investigation of sudden or unexpected deaths in Scotland, so as to ensure that Scotland has an effective and practical system of public inquiry into deaths which is fit for the 21st century.
Among the subjects expected to be considered during the review will be:
- Different models of decision-making and an examination of the extent to which the current arrangements provide the most effective and practical form of deaths inquiry
- The framework of procedural rules for fatal accident inquiries
- The use of expert evidence
- The legal representation of bereaved families
- The status of recommendations made by a sheriff at the conclusion of a fatal accident inquiry
- Inquiries into deaths in healthcare
- Inquiries into deaths in legal custody
- Consideration of the categories of mandatory and discretionary inquiries
- Whether there should be inquiries into all Scots deaths abroad (where the body is returned to Scotland)
- The interaction with other forms of investigation including public inquiries and investigations carried out by bodies such as the Health and Safety Executive
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 sets out the law on fatal accident inquiries in Scotland.
Around 50-70 fatal accident inquiries are held each year.
FAIs are important because they are inquiries held in the public interest into the circumstances of deaths which have caused serious public concern. The main function of an FAI is to address that public concern and, if appropriate, for recommendations to be made which might prevent such accidents occurring in the future.
The Procurator Fiscal investigates all sudden, suspicious, accidental and unexplained deaths to establish the cause of death and the circumstances which gave rise to the death. The Procurator Fiscal will carry out a full and thorough investigation into the circumstances and will decide whether any criminal proceedings are necessary or whether it would be appropriate to instruct a fatal accident inquiry. Only the Procurator Fiscal, under the authority of the Lord Advocate, can instruct a fatal accident inquiry which is a public examination of the circumstances of the death (though inquiries are mandatory in the case of deaths which occur as a result of an accident in the course of employment or in legal custody). The vast majority of deaths investigated by Procurators Fiscal do not result in a fatal accident inquiry.
The purpose of a fatal accident inquiry is to establish the time, place and cause of a death where there is public concern as to the circumstances of the death. Such inquiries do not attribute blame or guilt in either the civil or criminal sense. The Procurator Fiscal leads evidence at the inquiry, which is held in the sheriff court. At the conclusion of the inquiry, the sheriff will issue a determination which will contain findings about the circumstances of the death. The sheriff may make recommendations as to how such deaths may be avoided in future. These recommendations are not legally binding, since the circumstances of a particular death may be unique and it would not be appropriate to extrapolate across the board. Sheriffs make such recommendations in around a third of all fatal accident inquiries.
Lord Cullen of Whitekirk was called to the Scottish Bar in 1960 and became a Queen's Counsel in 1973, serving as an Advocate depute (Crown Counsel) from 1978 to 1981. In 1986 he was appointed a Senator of the College of Justice. He held office as the Lord Justice Clerk from 1997 until 2001, when he became the Lord President of the Court of Session and Lord Justice General of Scotland. He retired from the latter offices in 2005.
He conducted public inquiries into the Piper Alpha disaster, the shootings at Dunblane Primary School and the Ladbroke Grove rail crash.
He was made a Privy Counsellor in 1997, a life peer in 2003 and a Knight of the Thistle in 2007. He is a Fellow of the Royal Society of Edinburgh, and an Honorary Fellow of the Royal Academy of Engineering and of the Royal College of Surgeons of Edinburgh. He has been awarded honorary doctorates by a number of universities. He is a former chairman of the Cockburn Association (Edinburgh Civic Trust), and a former member of the Royal Commission on the Ancient and Historical Monuments of Scotland, and of the University Court of Napier University. He is the President of SACRO, and of the Saltire Society, and the chairman of the board of The Signet Accreditation Limited.