Changes modernising the system of Fatal Accident Inquiries (“FAIs”) come into force in Scotland this week.

Inquiries into Fatal Accident and Sudden Deaths etc. (Scotland) Act 2016

The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 comes into force on Thursday, 15 June 2017. The purpose of an inquiry held under the Act is to establish the circumstances of the death and consider what steps, if any, might have been taken to prevent other deaths in similar circumstances.

The new Act repeals the existing legislation, which has been in force for over forty years. The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 amassed criticism in recent years after several high-profile tragedies brought FAIs into the spotlight. It became increasingly apparent that the process was afflicted by inefficiencies, such that lengthy delays were commonplace. In August 2016, the Inspectorate of Prosecution in Scotland (“IPS”) produced a Thematic Review of FAIs, which revealed that, of 88 cases between 2012/13 to 2014/15, the average number of working days between a death occurring and an FAI taking place was 659. The study concluded that 70% of examined cases took more than 18 months from the date of death to the start of the FAI, and 28% took more than three years.

The new Act represents an attempt to modernise and streamline the FAI process. Changes brought about include:

  • A requirement on individuals or organisations participating in the inquiry, to provide a written response to the Scottish Courts & Tribunal Service (“SCTS”), explaining what has been done, or is proposed to be done, in response to any of the Sheriff’s recommendations relating to them.
  • The power to re-open an inquiry into the death of a person where it is in the public interest to do so and new evidence has arisen, which is highly likely to alter a finding or recommendation made at the original inquiry.

  • The power to hold FAIs into the death of Scots occurring abroad.

  • Flexibility on location and accommodation of FAIs and the power to hold single FAIs into linked events in different sheriffdoms.

  • Mandatory FAIs for children in secure accommodation and deaths under police arrest.

Comment

Each year, around 11,000 deaths are reported to the Crown Office and Procurator Fiscal Service, with an average of 50 – 60 of these resulting in an FAI being held. Recommendations, designed to prevent future deaths in similar circumstances, are made in approximately one third of those. Under the previous legislation, there was no requirement to implement or respond to recommendations.

The 2016 Act, on the other hand, places parties under an onus to respond to recommendations relating to them. Responses will be published in full, unless the SCTS can be persuaded that it should be withheld, in whole or part. The Act does not impose a sanction for failing to respond, but failure to do so will nevertheless be made public. This is a significant change to the FAI system. The potentially adverse publicity resulting from a recommendation and a failure to respond may give the system more influence in preventing future accidents. Ultimately, the reforms seek not only to dramatically hasten the FAI process, but equally to place more impetus behind it.