Hansard

I record my thanks to members for their contributions to the debate.

Before I go through the detail, it is important to address the point that Graeme Pearson raised about procurators fiscal being able to point people towards legal aid. I will consider that and see what we can do with the Crown Office and Procurator Fiscal Service and the Scottish Legal Aid Board to ensure that people are aware of the options that are available to them if they feel that the procurator fiscal will not take forward a certain line of questioning. I have tried to reassure members that we are aware of the issue, but I will take forward that point and see whether there is something that we can put in the family liaison charter to make that more explicit.

The bill provides the legislative framework that is needed to implement Lord Cullen’s recommendations. Of course, the detail of the procedure will be provided in comprehensive bespoke rules that will be written purely for fatal accident inquiries, whereas, until now, such inquiries have had to rely on the ordinary cause rules in the sheriff court.

Dr Murray raised a point about the delay in introducing the bill, although I should stress that it is a perceived delay. Inevitably, the bill had to wait in a queue of civil reforms, including the Courts Reform (Scotland) Act 2014. It was not delayed until such time as Patricia Ferguson’s member’s bill was introduced—that was perhaps a happy coincidence, if I can put it that way. We were certainly glad to work closely with Patricia Ferguson. I appreciate the hard work that she put into her bill and the constructive approach that she took after withdrawing her bill in working with the Government on amendments.

The bill builds on the recommendations that Lord Cullen directed to the Crown Office and which have already been implemented by the establishment of the Scottish fatalities investigation unit, which now oversees death investigations in Scotland. The Crown Office has also made a major contribution to the reforms by bringing forward its family liaison charter, which as a result of an amendment by Patricia Ferguson will be put on a statutory footing. The charter, which the Solicitor General for Scotland announced when she gave evidence to the Justice Committee at stage 1, will provide clarity on the information that the bereaved family will be provided with at the different stages of a death investigation. That is why it is possible to foresee information about legal aid being slotted into it. The charter will also give clarity on how and when that information will be communicated to the bereaved family by the Crown Office. It will give choice to bereaved families on how they want to communicate with the Crown, which is important.

I thank the Crown Office for expediting its work on the charter, which included a public consultation on a draft charter over the summer, so that it was available in time for stage 2. As I said, as a consequence of an amendment, the charter will be on a statutory footing. It is entirely appropriate that the Crown Office should take the lead on such matters, given the position of the Lord Advocate as the independent head of the system of death investigation in Scotland. It is worth remembering that section 48(5) of the Scotland Act 1998 makes it clear that

“Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.”

It is important to note how fatal accident inquiries fit into other investigations of death in Scotland. As has been said, procurators fiscal have a common-law duty to investigate all sudden, suspicious, accidental and unexplained deaths to establish the circumstances and cause of death. Around 11,000 deaths are reported to the Crown Office and Procurator Fiscal Service each year and it investigates about half of those. Some cases are also investigated by other agencies, including the Health and Safety Executive, which Christine Grahame referred to, the air, marine and rail accident investigation branches, the Care Inspectorate and of course the Mental Welfare Commission for Scotland. That sometimes causes a delay in the commencement of a fatal accident inquiry, but those are all important investigations. The Crown Office engages with those agencies and may instruct the police to investigate the circumstances and consider whether criminal charges should be brought, which may lead to a prosecution.

Consideration of criminal proceedings takes primacy, but investigations by the Crown are often held up and delayed by investigations by, for example, the air accidents investigation branch. Members will be aware that there was a considerable delay before the AAIB produced its report into the Clutha tragedy in Glasgow. Those delays are a matter of regret, as they lengthen the period of time before a fatal accident inquiry can take place.

I turn to some of the points that were raised in the debate. Christine Grahame, Christian Allard, Graeme Pearson and John Finnie referred to the issue of deaths abroad. The Justice Committee queried the requirement for the body to be repatriated before an inquiry could be held into the death of a Scot abroad, and I agreed that there may be occasions when a body has been lost or is otherwise not available for examination at a post mortem.

I pay particular tribute to Mr and Mrs Beveridge, who gave evidence to the Justice Committee at stage 1. It was a very brave thing to do. The death of their son Blair Jordan in harrowing circumstances was extremely distressing for them to deal with and I am very grateful to them, as I am sure are members of the Justice Committee, for sharing their personal experience. I hope that Mr and Mrs Beveridge will take some satisfaction from what has happened today, although it will not benefit their family—that would have required retrospective legislation—because it means that if someone dies in a situation similar to the one in which Blair died, the Lord Advocate will have discretion to hold a fatal accident inquiry.

Circumstances in which a body has been lost at sea will also be covered. It is right that in such exceptional circumstances the possibility of a death investigation and the potential for an FAI into a death abroad should not be lost. For that reason, we proposed the amendment at stage 2 that removed the requirement for a body to be repatriated before a fatal accident inquiry can be held. We hope that that will help relatives.

The Government recognises the need for bereaved families to be kept informed of progress with death investigations, and we think that the Crown Office’s charter will provide reassurance and enhance public confidence in the system. The charter will provide information about the system and timescales to families, and it will be written in a way that is understandable and accessible to everyone. I hope that that goes some way towards addressing the concern about timescales that Patricia Ferguson expressed in her bill proposal, in that the charter will ensure that families are at least aware of what to expect, with no nasty surprises in relation to delays that are encountered, and are kept informed throughout the process of the likelihood of a criminal prosecution.