Fatal Accident Inquiries

Part of the debate – in the Scottish Parliament at 2:55 pm on 27th March 2008.

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The Solicitor General for Scotland (Frank Mulholland):

I welcome the opportunity to open today's debate. On 7 March, the Cabinet Secretary for Justice announced that he and the Lord Advocate had agreed that there should be a review of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. The intention is that the review will ensure that the legislation is fit for purpose for the next 30 years, and that it will improve the work that is done in this hugely important and sensitive area, with due regard for the concerns of bereaved relatives.

The Government has asked the right hon Lord Cullen of Whitekirk, former Lord President of the Court of Session, to carry out the review on its behalf, with a view to reporting to the Lord Advocate and the Cabinet Secretary for Justice within one year of the start of the review with conclusions and recommendations. We are privileged to have a man of Lord Cullen's calibre conducting the review. He has extensive experience of this kind of work, having conducted inquiries into the Dunblane atrocity and the Piper Alpha and Ladbroke Grove disasters. He will bring his wealth of knowledge and experience to the review, and I am sure that I speak for the Parliament in expressing my gratitude to him for agreeing to undertake this important review.

Following the announcement on 7 March, today's debate is an opportunity for members of the Parliament to raise and discuss issues that they are aware of, which I am sure will be of assistance to Lord Cullen when he begins to think about the issues that are necessary for consideration.

It is clear that the time is right for a review of the system of public inquiries into deaths. Although the current system has, on the whole, served Scotland well and indeed has been the subject of favourable comment by the House of Lords sitting in its judicial capacity, it is acknowledged that the legal framework, processes and societal attitudes have evolved since the introduction of the legislation. For example, the incorporation of the European convention on human rights into our law has been significant in this area. Article 2 concerning the right to life has been the subject of judicial consideration in the recent cases of Emms and Black and Kennedy, and any system of inquiry into deaths must be compatible with the convention.

The review will provide the opportunity to explore alternative procedural and structural arrangements, consider in depth the concerns and wider issues that have been raised from time to time, and enable the delivery of an effective and practical system of judicial inquiry into deaths that is fit for the 21st century. The remit of the review, which I will touch on in more detail shortly, was set out on 7 March. The Government, informed by this debate, will work with Lord Cullen to ensure that the key issues are identified.

Before speaking about some of the specific issues that the Government thinks should be addressed, I will say a little about the context of the review. As the Parliament is aware, some work has been completed and more is under way to ensure that the criminal and civil justice systems are modern, efficient and cost effective. Significant developments include Lord Bonomy's review of the High Court; the review of summary justice; Lord Gill's review of the civil court system; and the introduction of the vulnerable witnesses legislation. Lord Cullen's review will form part of a suite of measures to ensure that the Scottish legal system continues to deliver justice in the 21st century.

The current system of fatal accident inquiries has, on the whole, worked well. It has provided a well-structured opportunity for the judicial examination of deaths in the public interest. However, the legislation that provides for fatal accident inquiries dates from 1976 and concern has been raised about the continuing suitability of the arrangements. For example, concerns have been raised about delays in fatal accident inquiries, either between the date of death and the start of the inquiry or between the start of the inquiry and the sheriff's determination.

Concerns have also been raised about legal representation for bereaved families and the injured; the status of the sheriff's recommendations; whether fatal accident inquiries are the best method of investigating deaths in specific circumstances, such as deaths in hospital and other health care situations; whether other persons, in addition to sheriffs, should be able to conduct inquiries; whether determinations should be reconsidered if significant new information comes to light; and whether fatal accident inquiries should be continuous or whether they may be adjourned to allow people to conduct research or obtain further expert opinion.

I am aware that some of those concerns are shared in the Parliament by members of all parties. Recently, the Justice Committee has considered a number of aspects of fatal accident inquiry procedures that have been drawn to its attention and which have caused the committee concern. It is right and proper that the Justice Committee has been exploring the issues. We need a wholesale re-examination of the legislation that considers the matters that concern the Justice Committee but also asks broader questions, such as whether, in certain cases, alternative models of decision-making procedure might provide a more effective inquiry than the current arrangements, and how the system of fatal accident inquiries interacts with other forms of investigation such as inquiries by the Health and Safety Commission.

I have mentioned some of the wide-ranging issues that we would like the review to address. Others include consideration of the categories of mandatory and discretionary inquiries; the framework of procedural rules; the status and function of the application to have an inquiry; whether there is a role for expert assessors to assist the decision maker when the inquiry encompasses issues of technical complexity; and cross-jurisdiction issues—for example, whether a fatal accident inquiry can consider a death or a cluster of deaths that arose from similar circumstances in another jurisdiction. There is clearly much to be done.

The Crown Office and Procurator Fiscal Service has wide experience of investigating sudden, suspicious, unexpected and unexplained deaths. In 2007, officials investigated more than 13,000 deaths. We have taken a number of steps in recent times to review the efficiency and effectiveness of our investigation of deaths. Our practices and processes in such investigations were the subject of a review by the independent inspector of prosecution in Scotland, who highlighted many examples of good practice in our discharge of that important area of work.

We are acutely aware that the death of a loved one is a particularly difficult time for bereaved relatives, who do not necessarily wish the distressing details of a death to be aired in public. It is not appropriate for a public inquiry to be held into every death that the procurator fiscal investigates. A proportion of investigations of deaths will lead to criminal charges, but in the vast majority of cases, investigation will disclose no grounds for criminal charges or a further inquiry by a judge in the public interest.

I hope that the review and today's debate will allow the Parliament an opportunity to consider how best to serve and pursue the public interest in this vital area of work. The debate is not an appropriate forum for me to comment on the circumstances of specific cases or to explain the decisions that were made in particular investigations. However, I assure the Parliament that the investigation of deaths is treated sensitively and is always subject to thorough examination and the most anxious consideration by Crown counsel.

I endorse and support the review, which is an overdue opportunity carefully to examine the systems that we have in place.