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A fatal accident inquiry is a Scottish judicial process which investigates and determines the circumstances of some deaths occurring in Scotland. Until 2009, they did not apply to any deaths occurring in other jurisdictions, when the Coroners and Justice Act 2009 extended the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976[1] to service personnel at the discretion of the Chief Coroner or the Secretary of State.[2] The equivalent process in England and Wales is an inquest. A major review of the fatal accident inquiries was undertaken by Lord Cullen of Whitekirk, at the request of the Scottish Government,[3] which resulted in the passing of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.[4]

History

Fatal accident inquiries were introduced into Scots Law by the Fatal Accidents Inquiry (Scotland) Act 1895, before which time the circumstances of a death which required examination were determined by a procurator fiscal. Since then, the procurator fiscal now deals with the investigation and initiation of such inquiries. The applicable legislation is the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976[1] and Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016,[4] and the law provides for inquiries to be held on a mandatory basis for some deaths and on a discretionary basis for others.[5]

Previously, a fatal accident inquiry only dealt with deaths that occurred in Scotland, whereas in England and Wales a Coroner will deal with the investigation of a death where the body lies within their district irrespective of where the death actually occurred. This led to some distress being caused to the families of service personnel who had been killed abroad but whose bodies have been returned through or to England at the insistence of the Ministry of Defence and in consequence their funerals have been delayed.[6][7]

The inquiries process was reviewed by Lord Cullen of Whitekirk for the Scottish Government in 2008,[8][9] following which the Scottish Government consulted on proposals in 2014.[10][11] The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016[4] was passed by the Scottish Parliament on 10 December 2015,[12] and replaced the 1976 act when it came into force in June 2017.[13]

Process

Death certificates

A person cannot be buried or cremated in Scotland unless a medical practitioner has issued a death certificate (and the associated certificate of registration of death, known as a form 14, has been issued),[14] and doctors are mandated to report certain sudden, suspicious, accidental, or unexplained deaths to the procurator fiscal, and the report will be received by the Scottish Fatalities Investigation Unit, part of the Crown Office and Procurator Fiscal Service.[15][16] The procurator fiscal can require a Police investigation, and where mandated by statute,[4] or otherwise at their discretion, the procurator fiscal can hold a fatal accident inquiry.

Criminal acts

Where the death appears to be due to a criminal act, the procurator fiscal will initiate investigations by the police, or other appropriate public authorities, to enable the identification of suspects and associated evidence to enable them to prosecute the case in the Sheriff Court, or for an Advocate Depute to prosecute in the High Court of Justiciary.

Mandatory inquiries

A fatal accident inquiry is mandated by the 2016 Act if the death occurred while the deceased was in lawful custody or whilst they were at work. Other inquiries may be held where the procurator fiscal decides it is "expedient in the public interest". The Lord Advocate has the discretion not to hold an inquiry (including a mandatory inquiry) where the circumstances of the death have been adequately established in criminal proceedings.[17][1]

Territorial jurisdiction

A fatal accident inquiry will take place before a Sheriff (judge) in a Sheriff court; there is no jury. Proceedings are inquisitorial, as opposed to adversarial.[18] Evidence is presented by the procurator fiscal in the public interest, and other parties may be represented. Parties can choose representation by Advocate (counsel) or solicitor, or may appear in person.

A fatal accident inquiry does not need to take place in the sheriffdom where the death occurred, and will take place in whichever sheriffdom the Lord Advocate determines. Although the Lord Advocate must consult the Scottish Courts and Tribunals Service before making a determination. A sheriff may make an order to transfer the inquiry subject to another sherrifdom, subject the approval of the relevant sheriffs principal.[19]

Determinations

Section 6 of the 1976 Act[1] the Sheriff is required to produce a determination. In drafting a determination the Sheriff is required to consider five distinct areas:

  1. Time and place of the death
  2. The cause of death
  3. Any precautions which may have avoided the death
  4. Any defects in the system of working which may have avoided the death
  5. Any other relevant considerations.

The 2016 Act introduces several changes to the previous system governed by the 1976 Act, including:[20][4]

  1. Mandatory inquiries for deaths in lawful custody are extended to the deaths of children in secure accommodation
  2. Discretionary inquiries can held at the direction of the Lord Advocate for deaths abroad
  3. If requested, the Lord Advocate must provide a written explanation if they decide not to hold an inquiry
  4. Inquiries may be reopened, or a fresh inquiry held, where there is new evidence

Events subject to a fatal accident inquiry

Examples include:

See also

References

  1. ^ a b c d "Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976". Legislation.gov.uk. 13 April 1976. Retrieved 19 February 2017.
  2. ^ "Section 12 of the Coroners and Justice Act 2009". Legislation.gov.uk. 12 November 2009. Retrieved 19 February 2017.
  3. ^ "Review of Fatal Accident Inquiry Legislation". Scottish Government. 7 March 2008. Retrieved 21 February 2017.
  4. ^ a b c d e "Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016". Legislation.gov.uk. 13 April 1976. Retrieved 19 February 2017.
  5. ^ "Review of Fatal Accident Inquiry Legislation: Statutory basis for FAIs". Scottish Government. 20 November 2008. Retrieved 19 February 2017.
  6. ^ "Thematic Review of Fatal Accident Inquiries". Scottish Government. 18 August 2016. Section 13. Retrieved 21 February 2017.
  7. ^ "Fatal Accident Inquiries - in the Scottish Parliament at 2:15 pm on 27th March 2008". TheyWorkForYou. mySociety. 27 March 2008. Retrieved 21 February 2017. The 1976 act does not cover deaths that occur overseas. In the past few months, I have highlighted the unacceptable situation whereby grieving families must cope with significant delays as well as long journeys to attend coroners' inquests in the south of England, where the bodies of their loved ones have been repatriated.
  8. ^ "Commissions, Inquiries, Reviews and Panels: Review of Fatal accident inquiry Legislation". Scottish Government. 18 March 2014. Retrieved 1 February 2017.
  9. ^ "Fatal Accident Inquiries Part of the debate – in the Scottish Parliament at 2:55 pm on 27th March 2008". TheyWorkForYou. Speech by the Solicitor General for Scotland: mySociety. 27 March 2008. Retrieved 21 February 2017. 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.
  10. ^ "Consultation on proposals to reform Fatal Accident Inquiries legislation". Scottish Government. 1 July 2014. Retrieved 1 February 2017.
  11. ^ "Consultation on Proposals to Reform Fatal Accident Inquiries Legislation - Analysis of Consultation Responses". Scottish Government. 21 November 2014. Retrieved 17 February 2017.
  12. ^ "Fatal Accident Inquiry Bill passes Stage 3". Scottish Government. 10 December 2015. Retrieved 17 February 2017.
  13. ^ "The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Commencement No. 3, Transitional and Saving Provisions) Regulations 2017". Legislation.gov.uk. Retrieved 24 October 2018.
  14. ^ "What to do after a death in Scotland ... practical advice for times of bereavement: 9th Edition". The Scottish Government. Retrieved 4 August 2018.
  15. ^ "Our [procurators fiscal] role in investigating deaths". Crown Office and Procurator Fiscal Service. Retrieved 19 February 2017.
  16. ^ "Reporting Deaths To The Procurator Fiscal: Information and Guidance for Medical Practitioners" (PDF). Crown Office and Procurator Fiscal Service. 2015. Retrieved 17 February 2017.
  17. ^ "SPICe Briefing Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill" (PDF). Scottish Parliament. Scottish Parliament Information Centre. 29 April 2015. p. 3. Retrieved 19 February 2017.
  18. ^ "Act of Sederunt (Fatal Accident Inquiry Rules) 2017" (PDF). Scottish Civil Justice Council. 2017. p. 2.2(1). Retrieved 4 March 2017. The inquiry principles 2.2.—(1) An inquiry is inquisitorial not adversarial.
  19. ^ "Section 13 of Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016". www.legislation.gov.uk. The National Archives. 14 January 2016. Retrieved 4 April 2017.
  20. ^ "Thematic Review of Fatal Accident Inquiries". Scottish Government. 18 August 2016. Section 12. Retrieved 21 February 2017.
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