A raft of changes came into force on 15 June 2017 reforming the conduct of Fatal Accident Inquiries in Scotland.
Fatal Accident Inquiries (FAIs) have been a feature of the Scottish legal landscape for the last 40 years. FAIs are the judicial mechanism for investigating deaths in the workplace, deaths in custody and other deaths which give rise to a public interest. The new Act governing FAIs - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 - received Royal Assent in January 2016 and since then various provisions have been coming into force. However, the majority of the changes came into force on 15 June. At the same time, new Rules setting out how proceedings are to be conducted in the courts also come into force.
The holding of an FAI
The new Act extends the list of circumstances for holding mandatory FAIs to include the death of a child who was required to be kept or detained in secure accommodation; military deaths in Scotland; and deaths of a person detained by the police in any location. Mandatory FAIs will continue to be held for deaths in employment and deaths in custody. The Lord Advocate also now has the discretion to order an FAI to be held following the death of a Scottish resident overseas.
The involvement of family and the location of the FAI
The involvement of bereaved families in the inquiry process has also been increased. It enables the deceased’s spouse, partner, next of kin, or any other person whom the sheriff is satisfied has an interest, to participate in an inquiry. There is also an obligation on the Lord Advocate to prepare a Family Liaison Charter which outlines how the procurator fiscal will liaise with the family of the deceased. This provision has been in force since September 2016 and the Charter can be accessed here.
The Act grants greater flexibility as to the location of an FAI. Inquiry proceedings may now be held in any sheriff court, whether or not it is the location of the incident or the residency of the deceased. Representations would be made by all participants on any such transfer.
The Sheriff’s recommendations
However, the most significant change under the new regime is to be found in the way in which sheriffs make recommendations and the duties on parties to respond to those recommendations. Under the old regime, sheriff’s recommendations were not in a prescribed form, however under the new Act recommendations may be made in relation to:
- the taking of reasonable precautions;
- the making of improvements to any system of working;
- the introduction of a system of working;
- the taking of any other steps; and
- which might realistically prevent other deaths in similar circumstances.
There are also changes as to how respondents must react to such recommendations. Respondents must now reply to the Scottish Courts and Tribunals Service within 8 weeks of receipt of a copy of the determination stipulating what has been done in response to the recommendation, or if nothing has been done, why this is the case. The Act does not introduce a sanction if the respondent contravenes the obligation to respond, however family members and the media will undoubtedly have an interest in how they react. The FAI determination page on the Scottish Courts’ website has already been updated to include space for uploaded responses.
The aim of the new rules is to improve efficiency in the how proceedings are undertaken. Rule 2 outlines the principles of the inquiry, which underpin proceedings:
- It is inquisitorial not adversarial
- The procedure is to be progresses expeditiously and efficiently
- The procedure is to be flexible, and
- All participants must be able to participate effectively
Sheriffs are granted wide management powers allowing them to make any order necessary to further the purpose of the inquiry, including requiring participants to lead particular witnesses. In addition, strict time limits are introduced so that following the lodging of the first notice (formerly petition); the sheriff must make an order within 14 days of receipt, either for a preliminary hearing to be held within 56 days of the first order, or for the inquiry to take place within 56 days of the first order. Under the Act, at least one preliminary hearing is to be held prior to the inquiry, unless the sheriff dispenses of this power.
The most significantly changed aspect to proceedings relates to the presentation of evidence. Under the new Rules, the sheriff may order that witness evidence be presented to the inquiry by witness statement or video recording. Furthermore, in respect of expert witnesses, the sheriff may order that a single joint expert is instructed, or may order for the concurrent presentation of expert witnesses (also known as ‘hot-tubbing’). It is also worth noting that the Rules exclude “any rule of law or enactment that prevents evidence being led on grounds of inadmissibility”.
The effect of the changes to how inquiries will proceed will not be fully realised until it is seen in practice. However, it is clear that parliamentary intentions are to achieve greater efficiency and consistency in proceedings and that can only be welcomed.