Possible changes for FAI legislation

The impact of Lord Cullen’s review

Decades-old legislation surrounding Fatal Accident Inquiries (FAIs) is facing an overhaul, with a number of possible recommendations for change currently under discussion by the Scottish Government. The review, published by Lord Cullen of Whitekirk last November, is aimed at modernising the existing 33-year-old FAI legislation so that it is sturdy enough to meet future legal challenges.

MPS has taken part in the consultation process that accompanied the recommendations, and welcomes its overall aim and the consultative process itself. While we have not agreed with every recommendation, there are many that we feel to be positive changes.

The main recommendations include issues surrounding Sheriffs and Sheriff Courts, the circumstances around mandatory FAIs, procedures to be followed if a decision is taken not to carry out an FAI, and how determinations should be arrived at and communicated.

The creation of a central FAI team has also been recommended. Although there is the potential for a loss of local knowledge and expertise that may be pertinent to the FAI, MPS does feel that the pooling of experienced procurators fiscal – with their specialised knowledge in conducting FAIs – should bring about greater consistency in their administration.

The experience of the team handling any FAI is a very important point for MPS, whose members are likely to be involved in complex medical issues. We are greatly encouraged that Lord Cullen has recommended that in complicated cases, an experienced Sheriff with more appropriate knowledge or experience can be assigned to the case, regardless of where it occurred.

It is also vital that the experience of any team handling an FAI is appropriate to the case, which can feature complex medical issues. MPS is greatly encouraged by Lord Cullen’s recommendation that a uniquely-experienced Sheriff – one with suitable knowledge and experience – can be assigned to any particularly complicated case, regardless of where it occurred.

We are also supportive of the recommendation that a single FAI can be held into multiple deaths in more than one sheriffdom. This is particularly useful in cases where a number of deaths have been caused by a single incident, or where there are common factors – and common lessons to be learned – across cases.

It is not yet clear which recommendations will be taken forward by the government, with no official response made. However, Kenny MacAskill MSP, the Cabinet Secretary for Justice, has already said that he is liaising with the Crown Office and Procurator Fiscal Service over some of the complexities in the issues involved.

In the meantime, while it is unlikely that any movement on the recommendations will happen in the immediate future, MPS looks forward to the Scottish Government’s response and a continuing participation in the consultation process.