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MSP's FAI proposals could have unwelcome consequences: Faculty

22 November 2013

Reforms to Scotland's fatal accident inquiry system contained in proposals for a member's bill at Holyrood could have “unintended and unwelcome” consequences, according to the Faculty of Advocates.

The proposals, by Patricia Ferguson MSP, would adopt reforms recommended following the inquiry by Lord Cullen, but would go further, allowing inquiries to focus on learning lessons as opposed to how a death took place, widening the circumstances in which inquiries can be held, and imposing new obligations on the Lord Advocate in relation to timescales for deciding whether to hold an inquiry, and giving reasons for his or her decsion.

In its response to the consultation on the proposed bill, the Faculty agrees that improvements to the system could be made. However, it does not support Ms Ferguson's objective of extending the scope of investigations and inquiries into work-related deaths to include industrial disease, or exposure to certain circumstances.

“In the case of industrial diseases, it is very often the case, due to long latency periods applying to the disease process, that the death will occur long after lessons have already been learned about the dangers posed by the causative agent and the precautions required to avoid exposure", the advocates comment.

“We do not consider it to be in the public interest that the category of cases for which it is mandatory that an inquiry be held should be enlarged to include work-related deaths other than those already covered by section 1(1)(a) of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976.”

In relation to discovering the lessons to be learned from a death, Faculty believes that no change in the legislation is required. “We think that the current legislation does already recognise the importance of discovering lessons to be learned from a death and that, in practice, the current system does operate to ensure that where lessons can be learned from a death, they are”, the response states.

Offence

In cases where a sheriff makes recommendations for change to prevent other deaths, Ms Ferguson wants non-compliance with those recommendations to become an offence carrying a fine or up to six months’ imprisonment. Faculty argues that this would bring “significant disadvantages”, as it would carry "the real potential to turn FAIs into examples of the most adversarial litigation". The end result would be to make FAIs lengthier, more complex and more expensive – directly contradictory to one of the key aims of the proposed bill.

In addition, the possibility that a sheriff’s recommendations might be directed to persons or bodies who were not parties to the inquiry and not in a position to challenge or counter any of the evidence, but might find themselves guilty of an offence is "unacceptable and liable to give rise to injustice. Furthermore, it is incompatible with article 6 of the European Convention on Human Rights”.

Regarding the interests of the deceased's family, for whom the bill proposes a “special role” in an inquiry, Faculty agrees that it is important for the family to have an opportunity to participate effectively, should they wish to do so, but comments that, under the current system, the family is able to instruct its own legal representation and to present its own evidence through a solicitor of their choosing. “We also consider that it is important in the public interest for each FAI to be conducted according to the judgment of the procurator fiscal assigned to the case. Our experience is that the current system strikes the correct balance between the legitimate interest of the family, other interested parties and the public interest”, it states.

Click here to access the full response.

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