Consultation Paper-Review of Fatal

NORTH LANARKSHIRE COUNCIL

REPORT

Subject: CONSULTATION PAPER - REVIEW OF FATAL ACCl DENT INQU I RY LEGI SLAT1 ON

Date: Ref: NY/AT 1

1. INTRODUCTION AND PURPOSE OF REPORT

1.1. This consultation is part of the Review of Fatal Accident Inquiry legislation in Scotland. Currently, the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976, (‘the Act’) governs the system of judicial investigation of sudden or unexplained deaths in Scotland. The purpose of the review is to ensure that Scotland has an effective and practical system of public inquiry into deaths which is fit for the 21’‘ century. The purpose of the consultation paper is to inform interested parties of the principal issues to be considered by the review and to take their views on those issues. Responses to the consultation paper are invited by 20thFebruary 2009.

1.2. The purpose of this report is to seek approval for a response to the consultation paper. A copy of the consultation paper is available in the Members’ Library.

2. BACKGROUND

2.1. The review of the Fatal Accident Inquiry legislation began its work on 9 June 2008 headed by the Right Honourable Lord Cullen of Whitekirk.

2.2. Around 14,000 sudden or unexplained deaths are reported every year. About half of them are investigated by the Procurator Fiscal as part of the work of the Crown office and Procurator Fiscal Service. In practice the need for a judicial investigation arises in only a very small fraction of these cases. In accordance with current legislation, the procurator fiscal applies for a Fatal Accident Inquiry (FAI) to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected. The Act provides that the sheriff is to make a determination setting out the circumstances of the death, so far as they have been established to his or her satisfaction, including ‘the reasonable precautions, if any, whereby the death might have been avoided’ and ‘the defects if any in any system of working which contributed to the death or any accident resulting in the death’. Recommendations are made by sheriffs in about one third of FAls. The sheriff has no power to make any findings as to fault or to attribute or apportion blame.

2.3. The consultation paper is seeking views on five groups of questions : about general matters; the decision that an FA1 should be held; the holding of an FA1 ; evidence and procedure; and the determination of sheriffs.

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3. C 0 NSI DERAT1 0 NS 3.1. While the Council has involvement in Fatal Accident Inquiries, the specific issues raised by many of the questions in the consultation paper are largely ones on which the Council is ill placed to comment or would not wish to do so.

3.2. An exception to this general position are proposals to expand the category of deaths for which a fatal accident inquiry is mandatory to include all deaths in care (which would include children in care and adults in care or detained under certain of the Council’s statutory powers). The consultation paper also asks whether interested parties other than relatives of the deceased should be able to make representations to the Lord Advocate when she makes a decision in relation to discretionary Fatal Accident Inquiries.

4. CORPORATE CONSIDERATIONS

4.1, Recommended answers are provided to all consultation questions. Questions 6 and 8 are of particular interest to the Council.

5. RECOMMENDATION

The Committee is asked to approve to the draft response to the consultation paper as detailed in appendix 1 .

For further information, please contact Aileen Howson, Chief Solicitor, on extension 2526.

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CONSULTATION RESPONSES

Q1 Should there be any change in the purpose of the features of FAls?

There should be no change in the the purpose or features of FAls. In particular, it should retain its fact finding purpose ie there should be no alteration to the Sheriffs current powers. North Lanarkshire Council has no further comment to make.

Q2 Should FAls be held in some forum other than the Sheriff Court?

It is considered that specialist tribunals could replace the role of Sheriffs. Given the subject matter of these inquiries, if proceedings were less formal this might benefit relatives of deceased persons. North Lanarkshire Council has no further comment to make.

Q3 Should specialist Procurator Fiscals handle FAls?

This is worthy of consideration given the subject matter of FAls. North Lanarkshire Council has no comment to make.

Q4 Should the scope of the Act be altered so as to cover FAls into the death of a Scot abroad?

Perhaps at the discretion of the Lord Advocate, as opposed to in every case. North Lanarkshire Council has no further comment to make.

Q5 Should it be possible for FAls to be held where appropriate into multiple deaths in more than one jurisdiction?

No. This is unnecessary. North Lanarkshire Council has no further comment to make.

Q6 Should the deaths which fall within the mandatory category be changed?

North Lanarkshire Council considers that no change should be made to the mandatory category.

Q7 Should the requirement to hold an FA1 into a death which falls into the mandatory category be subject to exception?

No there should be no exceptions as this could affect confidence in the integrity of the relevant decision making process. North Lanarkshire Council has no further comment to make.

Q8 Should other interested parties be able to make representations to the Lord Advocate during the decision making process?

North Lanarkshire Council considers that, where a death occurs in the workplace or in care, it would be appropriate to allow the employer or the Local Authority respectively to

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make representations to the Lord Advocate during the decision making process. This could only be of assistance to the Lord Advocate in her preliminary assessment of the background to the death and would allow a more complete consideration of whether any of the factors requiring the holding of an FA1 are in existence.

Q9 Where the Lord Advocate decides not to hold an FAI, should a formal, reasoned decision be provided to relatives of the deceased?

Perhaps the Lord Advocate should have discretion to do this where he / she considers it appropriate. North Lanarkshire Council has no further comment to make.

Q10 Is adequate notice given to interested parties in advance of an application being made? North Lanarkshire Council has no comment to make.

Q11 Is adequate advice, information and support provided to the relatives of the deceased?

North Lanarkshire Council has no comment to make.

Q12 Is the current approach to the provision of Legal Aid to the relatives appropriate?

North Lanarkshire Council has no comment to make.

Q13 Should provision for preliminary hearings be made in respect of the whole of Scotland?

Perhaps the Lord Advocate should have discretion to arrange a preliminary hearing where he / she considers it would be appropriate. North Lanarkshire Council has no comment to make.

Q14 Should evidential material be provided to parties in advance of the FAI?

Yes. This may help to close some issues more efficiently. North Lanarkshire Council has no further comment to make.

Q15 Should there be a relaxation of the conditions under which signed and sworn statements can be used?

No. North Lanarkshire Council has no comment to make.

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Q16 What can be done to ensure that the most authoritative independent experts are selected to given evidence at FAls?

North Lanarkshire Council has no comment to make. The Crown is the appropriate party to address this issue.

Q17 Is there a place of expert assessors in FAls?

North Lanarkshire Council has no comment to make.

Q18 Should the evidence of a witness at an FA1 be inadmissible in other judicial proceedings?

No - this could undermine the judicial system as a whole. North Lanarkshire Council has no further comment to make.

Q19 Should there be guidance as to matters which should be covered by determinations?

No. North Lanarkshire Council has no comment to make.

Q20 Would it be helpful to create an up to date public database of determinations?

Yes. North Lanarkshire Council has no further comment to make.

Q21 Should responses to the recommendations be monitored?

No as this could convert ‘recommendations’ to ‘orders’. North Lanarkshire Council has no further comment to make.

Q22 Should the Lord Advocate be able to apply for a further FA1 or the re-opening of an FAI?

If this were to be done, it should only be in exceptional circumstances. North Lanarkshire Council has no further comment to make.

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CONSULTATION RESPONSES

Q1 Should there be any change in the purpose of the features of FAls?

42 Should FAls be held in some forum other than the Sheriff Court?