New Scottish fatal accident inquiry legislation aims to modernise process, says expert

The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill would implement recommendations that have not already been introduced by the Crown Office and Procurator Fiscal Service (COPFS) following a 2009 review of FAI legislation by Lord Cullen, who led the Dunblane, Piper Alpha and Ladbroke Grove inquiries. Proposed changes include increased flexibility in the location and accommodation for FAIs allowing them to take place outwithcourt buildings in more suitable accommodation, and permitting discretionary FAIs into deaths of Scots abroad where the body is repatriated.

Health and safety law expert Laura Cameron of Pinsent Masons, the law firm behind Out-Law.com, said that the measures set out in the draft legislation had the potential to speed up the often-criticised "slow process" of conducting FAIs in Scotland.

"This bill is designed to render the FAI system relevant for the modern era by building in efficiencies and proactive process," she said. "It achieves that in a number of ways by building in flexibility in the location of the FAI, providing for preliminary hearings, allowing uncontroversial evidence to be agreed between parties and making provision for the designation of specialist sheriffs in FAIs."

"The big question is whether these developments will, in reality, speed up the often criticised slow process – let's all hope so," she said.

An FAI is a judicial process which investigates and determines the circumstances of some deaths occurring in Scotland. Currently, an FAI must take place when someone dies in custody in prison or in a police station, or a death is caused by an accident at work. They can be held in other circumstances if it is thought to be in the public interest. FAIs take place before a sheriff, who is required to produce a determination setting out time, place and cause of death, and any precautions or defects in the system which could have prevented the death.

If passed in its current form, the bill would extend the categories of death in which it is mandatory to hold an FAI to cover those arrested or detained by the police at the time of death, and the deaths of children in secure care. New rules would for the first time permit discretionary FAIs to take place into the deaths of Scots abroad where the body is repatriated to Scotland; provided that the Lord Advocate considers that any investigations already carried out have not sufficiently established cause of death and there is a real prospect that the full circumstances would be established at the FAI.

The bill would also allow for more flexible locations and accommodation for FAIs, and would permit FAIs to be re-opened if new evidence arises with the potential for a completely new inquiry to be held if that evidence is substantial enough. It would also place a requirement on those to whom the sheriff directs recommendations at the end of an inquiry to respond, setting out whether they have followed those recommendations or explain why they have not done so.

Paul Wheelhouse, the Scottish government's minister for community safety, said that the measures set out in the bill would "undoubtedly improve" the FAI process in Scotland.

"In particular, the introduction of the possibility of a Fatal Accident Inquiry for deaths abroad is a hugely important step in providing answers for families," he said.

"The fact that those who receive recommendations from sheriffs will now have a statutory requirement to report back also means the process will be much more robust, accountable and efficient," he said.