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Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 24th September 2015.

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Photo of Christine Grahame Christine Grahame Scottish National Party

No—I think that it would be very dangerous for us to interfere with the independence of the Lord Advocate, who takes the decision on what is and what is not in the public interest. I will refer to that issue when I come to my point about families who are told why there will not be an FAI.

The subject of delays and the role of families are important. In evidence, we heard about a real lack of clarity and understanding about the role of the bereaved family in an FAI. That cannot be emphasised often enough. Again, quite understandably, relatives may have the understanding that the FAI is on behalf of the deceased. We understand why that is, but I stress again that an FAI is held in the public interest. An FAI is not a trial, and if there is the prospect of a criminal prosecution the FAI may be delayed until a decision is made in that regard.

There was concern not just about those aspects, which are important, but about a perceived lack of communication with families at various stages of the often lengthy process, and about decisions not to hold an FAI when it is not mandatory. In that regard, we welcome the requirement that the Lord Advocate will provide written reasons for a decision not to hold a discretionary FAI, but we consider—I highlight to Johann Lamont—that reasons should be given whether or not a request is made. In other words, reasons should be given whether or not the family makes a request, so that there is some explanation to relatives of why it has been decided that it is not in the public interest to have an FAI.

Although one of the main criticisms of the current system was the lengthy delays between a death and the start of an FAI, we understood that there could be good reasons for that, not least, as I have said, to establish whether criminal proceedings are appropriate. However, families told us that they often received little communication or explanation about what was happening in the intervening period. I stress again that we should always bear in mind that families are grieving and that, for all sorts of reasons, an FAI will be an additional ordeal.

The committee was therefore encouraged when the Solicitor General for Scotland announced to us that the Crown Office is working on the milestone charter—to which the minister referred—to clarify what the bereaved family should expect from the process. I welcome, too, the minister’s commitment in his response to the committee’s report that he will lodge an amendment to place the charter on a statutory basis.

As the minister said, mandatory FAIs are currently held when a death occurs in Scotland either as a result of a work-related accident or when the deceased was in legal custody at the time of death. The former does not apply to the armed forces or indeed to police officers on duty. To give some context, I will repeat what the minister said, which was that death investigations are carried out by the Crown Office and Procurator Fiscal Service in roughly half the deaths—about 11,000 a year—that are reported to the procurator fiscal. Only some 50 to 60 of those result in an FAI.

We heard from some witnesses that mandatory FAIs should be held in a number of circumstances in addition to those that are specified in the bill, for example after the death of a person detained under mental health legislation or after the death of a looked-after child, as such cases can involve some of the most vulnerable people in our society. Others did not think that it was necessary or proportionate to hold an FAI in each and every case.

The committee asked the Scottish Government to consider the issue further. I note that the minister has concluded that the decision in those cases should be left to the Lord Advocate, acting in the public interest.

We welcome the provision in the bill to allow FAIs to be undertaken when a death has occurred abroad, but we were concerned about the particular stipulation that, for an FAI to be undertaken into such a death, the body must be repatriated. We felt that there could be circumstances in which there would be sufficient evidence to hold an FAI without the repatriation of a body—for example when someone is lost at sea—and we recommended that the Scottish Government should lodge an amendment at stage 2 to allow for some discretion in that area. I therefore welcome the minister’s commitment to do just that.

The committee was surprised to hear that mandatory FAIs are not held into the deaths of military service personnel in Scotland. Such deaths would be subject to a mandatory coroner’s inquest if they occurred in England and Wales. FAls can be held into the deaths of Scottish service personnel that occur abroad. The committee was therefore concerned about the situation in Scotland and was keen for the Scottish Government to look into the issue further. I note the minister’s response that a change would need to be achieved through an order under section 104 of the Scotland Act 1998, as the matter is reserved. I am encouraged—I think that the committee would be encouraged, too—that the UK Government has, in principle, agreed that such deaths in Scotland should be treated in the same way as they are in England and Wales. That issue was raised with the committee by a member of the public and I commend him for his resolve in pursuing the matter.

The committee welcomes the proposals in the bill to require sheriff’s recommendations to be published and to oblige those to whom they are directed to respond. There was general agreement among witnesses that the recommendations should be published on the Scottish Courts and Tribunals Service website, as proposed in the bill.