Fri 12 Sep 2014

Investigation of deaths in Scotland

There is no doubt of the importance of carrying out investigations following the death of an individual to identify the cause of death and establish whether it could have been avoided.The importance of allowing those investigating deaths to obtain information to assist with this process was highlighted in May this year by the High Court in HMRC v HM Senior Coroner for the City of Liverpool and others [2014] EWHC 1586 (Admin).

The Coroner was investigating whether the deceased's death was caused by an industrial disease.  He sought information about the deceased's employment history from HMRC and, when HMRC failed to respond, he issued a notice under schedule 5 to the Coroners and Justice Act 2009 requiring HMRC to produce the requested information.  HMRC raised judicial review proceedings seeking an order quashing the notices.   The High Court ultimately held that HMRC were bound by the notices and required to produce the information.  The 2009 Act was intended to strengthen the powers of coroners and the legislative purpose of the section would be frustrated if it did not bind the Crown.

In Scotland, the procedure for investigating deaths is regulated by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.  The investigation of deaths is carried out by procurators fiscal in Scotland rather than coroners.   The procurators fiscal are tasked with carrying out a full and thorough investigation and determining what, if any, further procedure is required.  Deaths related to industrial disease (as was suspected in the HMRC case) would therefore be investigated by the procurator fiscal. 

In some circumstances it may be necessary to hold a fatal accident inquiry (FAI) into the death. FAIs are fact-finding inquiries held in the public interest where a sheriff will determine the case of death (as would be done by a coroner in an inquest in England and Wales). 

FAIs are mandatory for deaths in the course of employment or in legal custody.   The Lord Advocate has the power to waive the requirement to hold an FAI if the death will be adequately investigated as part of criminal proceedings.   He may also order that an FAI be held if it the death was sudden, suspicious or unexplained, or if there is a serious public concern.  The overwhelming majority of deaths investigated do not result in an FAI.   Deaths resulting from an industrial disease, such as those investigated by the Coroner in the HMRC case, would be unlikely to result in a FAI.

At an FAI, the sheriff can make recommendations to assist with avoiding deaths in similar circumstances in the future.  The purpose of an FAI is not to establish guilt or fault in the way that is done in a civil or criminal action. 

The legislation around FAIs was examined in 2009 in Lord Cullen's Review of Fatal Accident Inquiry Legislation.  Recommendations set out in the report following the review included changes to the requirements for mandatory FAI and changes to the procedures, for example, allowing witness statements and affidavits and the creation of a comprehensive self-contained set of rules for FAIs as well as the extension of the sheriff's power to make recommendations.

The Scottish Government is currently consulting on proposals to reform Fatal Accident Inquiries legislation.  The Scottish Government has indicated in the consultation that a proposed bill will repeal the current legislation and enact new legislation to govern the system of FAIs in Scotland.  

At Morton Fraser, we have contributed to that consultation to provide the benefit of our experience of conducting FAIs on behalf of clients.  Once in place the new legislation and rules will hopefully allow for the process of FAIs to operate even more effectively.

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