The 2016 Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act, which is now fully in force, introduces mandatory FAIs for new categories of death after 15 June 2017 and allows for discretionary FAIs into the deaths of Scots abroad whether or not the body is repatriated.
The Act has also introduced procedural modifications, including the power to reopen an FAI if new evidence arises and to order a new FAI if that new evidence is substantial enough. It also introduces more flexibility over where FAIs can be held, and requires individuals and organisations to respond to any recommendations made by a sheriff as part of the FAI process. Deaths before 15 June 2017 remain subject to the previous regime, which was introduced in 1976.
Minister for community safety and legal affairs Annabelle Ewing said that the new law would "broaden the scope of inquiries, including to deaths abroad and the deaths of military personnel in Scotland".
"FAIs are an essential part of our justice system and we want to make sure they are as effective and fair as possible," she said. "Sheriffs will now play a more active role in the process, and the new Act requires people and organisations to respond to recommendations made by sheriffs which will improve compliancy and accountability."
An FAI is a non-adversarial, fact-finding process through which the circumstances of some deaths occurring in Scotland, and now in certain circumstances abroad, are investigated and established. They 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. The sheriff can also make recommendations as part of the FAI process, although these are not required.
Of the approximately 11,000 deaths reported to the Crown Office and Procurator Fiscal Service (COPFS) in Scotland each year, an FAI is held in between 50 and 60 cases. The sheriff makes recommendations which could prevent deaths in similar circumstances in the future in about one third of these.
The law requires an FAI to take place when someone dies in custody or in prison or in a police station, or a death is caused by an accident at work. The new law extends the mandatory FAI categories to also include deaths of children in secure care, and all cases where the person is arrested or detained by the police at the time of death regardless of where the death takes place. Mandatory FAIs have also been introduced for the deaths of soldiers in Scotland by the UK government, by way of an order under section 104 of the 1998 Scotland Act.
Discretionary FAIs can be held in other circumstances where it is thought to be in the public interest. This has now been extended to include the deaths of Scots abroad. However, the Lord Advocate can only order a discretionary FAI into the death of a civilian abroad where the circumstances of the death have not sufficiently been established in any investigation already carried out and where there is a real prospect that the full circumstances would be established at an inquiry in Scotland.
Commenting when the legislation received royal assent, litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that it remained to be seen whether the reforms would "shift the process back to where it should be - an investigation in the public interest".
"The less headline-grabbing parts of the package are aimed at making the process more efficient and up-to-date. For these, there can be nothing but a warm welcome," he said.