Fatal Accident Inquiries (FAIs) came to public attention with the publication of Lord Cullen's review of FAI procedure. There was a recent interesting recent judicial decision in this area.

Lord Malcolm considered in what circumstances the Lord Advocate is obliged to hold a Fatal Accident Inquiry in Niven v Lord Advocate 2009, given the duties that are imposed on the government by the European Convention on Human Rights (ECHR). A request for an FAI was made by the mother of a woman whose former boyfriend was convicted of her murder. The conviction was quashed when new evidence was disclosed at his appeal hearing. An investigation into the initial police inquiry did not reveal any failing on the part of the police.

The Lord Advocate used her discretionary powers and refused the mother's request for an FAI. The Lord Advocate’s reasons were that the circumstances of the daughter's death had already been comprehensively investigated and no new evidence had come to light. The mother sought judicial review of the decision. She argued that the Lord Advocate did not have discretion and was in fact obliged to hold an FAI under s1(2) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (the 1976 Act) as her daughter's death had been “sudden, suspicious and unexplained”. The decision not to do so was incompatible with the government's duty to ensure that everyone's right to life is protected by law, under Article 2 of the ECHR.

Lord Malcolm upheld the Lord Advocate's decision as the circumstances of the death had already been explored in the criminal trial. While there were unanswered questions about the death, as there was no new evidence, Article 2 of ECHR did not oblige the Lord Advocate to hold an FAI. It seems likely that if the death had not already been the subject of a trial the mother might have been successful. In that and other situations, a decision by the Lord Advocate not to hold an FAI might well be found to be in breach of Article 2, particularly where it can be argued that a further inquiry would be in the public interest.

Perhaps with the case of Niven in mind, in his review of FAI procedures, Lord Cullen proposes that where a decision is taken not to hold an FAI, written reasons should be provided to the relatives of the deceased on request. In the wake of these developments there may well be more cases in the future - watch this space.