FACULTY OF ADVOCATES

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1 FACULTY OF ADVOCATES RESPONSE By THE FACULTY OF ADVOCATES to CONSULTATION BY PATRICIA FERGUSON MSP on the PROPOSED INQUIRIES INTO DEATHS (SCOTLAND) BILL 1. Do you support the general aims of the proposed Bill as outlined above? In so far as the objective of the proposed Bill is to consolidate the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 ( the 1976 Act ) and give effect to almost all of the recommendations of the report of the Review of Fatal Accident Legislation by Lord Cullen in 2009 ( Lord Cullen s report ) we would refer to the Faculty of Advocates response to the Consultation which preceded Lord Cullen s report: the views of the Faculty remain as set out in that response document. We agree that improvements to the system could be made to make the process quicker and more transparent and we have addressed that more fully in relation to questions 4 and 6 below. In relation to the first additional main objective of the proposed legislation put forward to extend the scope of investigations and inquiries into work related deaths to include

2 industrial disease or exposure to certain circumstances due to the nature of employment - we do not support that proposal. Our reasons for that are fully set out in our response to question 7 below. In relation to the second additional main objective of the proposed legislation put forward to place on a statutory footing the fact that discovering the lessons to be learned from the death is at least as important as discovering the cause of the death we do not consider that a change to 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. 2. Do you agree that equal emphasis should be placed on a) identifying how the death occurred and b) ensuring lessons are learned following the death? Do you accordingly agree that there will be occasions where an inquiry should be held to only consider what lessons are learned from a death because the circumstances of the death are well established? We agree that, in principle, equal emphasis should be placed on a) identifying how the death occurred and b) ensuring lessons are learned following the death. However, we think that the present system already operates to uphold this principle. We do not agree that, currently, the rules place a greater importance upon finding out what happened and why it happened than on the lessons that can be learned from the death.

3 Consideration of the terms of the current legislation demonstrates this. Section 1(1) of the 1976 Act makes provision for mandatory FAIs in certain circumstances. 1 Section 1(2) of the Act makes provision for exceptions to a mandatory FAI being required. 2 At paragraph 23 of the Consultation document, it is stated that opinions are sought on proposals to place on a statutory footing the fact that discovering the lessons to be learned from the death is at least as important as discovering the cause of death (emphasis added). It can be seen from the terms of the current legislation, referred to above, that FAIs in relation to the deaths referred to in s1(1)(a) of the 1976 Act which are subject to the proviso in s1(2), only cease to be mandatory where the Lord Advocate is satisfied that the circumstances of the death (emphasis added) have been sufficiently established (in the course of criminal proceedings). The phrase the circumstances of the death has a different meaning from the cause of the death in the 1976 Act. Reference is made to section 6(1) of the 1976 Act which provides: 1 (1)Subject to the provisions of any enactment specified in Schedule 1 to this Act and subsection (2) below, where (a)in the case of a death to which this paragraph applies (i)it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or selfemployed person, was engaged in his occupation as such; or (ii)the person who has died was, at the time of his death, in legal custody; the procurator fiscal for the district with which the circumstances of the death appear to be most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into those circumstances. 2. (other than such a death in a case where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted, and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of such proceedings)

4 At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff shall make a determination setting out the following circumstances of the death so far as they have been established to his satisfaction (a) where and when the death and any accident resulting in the death took place; (b) the cause or causes of such death and any accident resulting in the death; (c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; (d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and (e) any other facts which are relevant to the circumstances of the death. It is clear from the terms of section 6(1) of the 1976 Act that the circumstances of the death do include the cause of death 3 but importantly they also include: the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided 4 ; and the defects, if any, in any system of working which contributed to the death of any accident resulting in the death. 5 Plainly sections 6(1)(c) and (d) of the 1976 Act, as set out above, are concerned with the lessons to be learned from the death to use the language of the proposal. Demonstrably, therefore, the current legislation does not place a greater importance upon finding out what happened and why, than on the lessons that can be learned from the death. In a case in which, during the course of criminal proceedings, the cause of death has been established but the other circumstances of a death remain unclear, the Lord Advocate could not be satisfied that the circumstances 6 of the death had been sufficiently established. 3 s6(1)(b) of the 1976 Act 4 s6(1)(c) of the 1976 Act 5 s6(1)(d) of the 1976 Act 6 as set out in section 6(1) of the 1976 Act

5 Accordingly, the present legislation provides that, in cases to which sections 1(1)(a) apply, an FAI is still required in this situation. 3. Do you agree that it is important that the Sheriff be given the fullest power to make and enforce recommendations for change in light of the lessons learned from the death including the creation of the statutory offence proposed in the Bill and do you think that the proposals within the Bill satisfy that purpose? We agree with the recommendations in Lord Cullen s report that: where, in the light of the circumstances of the death, the sheriff is satisfied of the need to take action to prevent other deaths, the sheriff should have the power to make recommendations for this purpose to (i) a party to the FAI; and (ii) to any body concerned with the safety which appears to the sheriff to have an interest in those circumstances. 7 However, we consider that there are significant disadvantages in introducing mandatory compliance with the sheriff s recommendations which weigh heavily against the introduction of the proposed power to enforce recommendations (including in particular the proposed creation of a statutory offence as proposed in the Bill). Some of these are referred to at paragraph 3.33 of Lord Cullen s report, where Lord Cullen identifies that the introduction of mandatory compliance with a sheriff s recommendation would plainly introduce an adversarial element into the FAI, since a body which might be faced with the possible imposition of a duty would require notice and might well seek to contest it. Provision would also have to be made for a right of appeal. These factors would make for an unwelcome addition to the length and complexity of the FAI. By the time that the sheriff came to the question of the imposition of a duty, circumstances might have so changed that an originally conceived duty was no longer appropriate, with the consequence that further 7 Reference is made to paragraph 3.32 of Lord Cullen s report

6 procedure might be required. The imposition of a duty would be pointless without some form of sanction for non-compliance; and it is not clear what sanction would be practicable. It cannot be assumed that a duty imposed by a sheriff might not conflict with the view taken by another sheriff in other circumstances. A system for the imposition of duties would, in the case of many bodies, take no account of their procedures for reviewing practices in the light of both their internal investigation and the outcome of FAIs. We note, moreover, that the draft Bill makes no provision for any right of appeal in respect of the sheriff s determination. Plainly, as Lord Cullen identified, such a right of appeal would be a necessity if mandatory compliance with a sheriff s recommendations was to be introduced. The draft Bill proposes to re-enact 8 a provision within the 1976 Act that the sheriff is entitled to be satisfied that the circumstances (referred to in section 17(1)) have been established notwithstanding that the evidence is not corroborated. The draft Bill then makes provision for the sheriff to be empowered 9 to make recommendations and 10 to enforce them. Notwithstanding the uncorroborated nature of the evidence upon which recommendations may be based, the draft Bill provides 11 that failure to comply with a recommendation shall be an offence which is punishable by a fine not exceeding level 4 on the standard scale or a period of imprisonment not exceeding 6 months. We have grave concerns about the creation of a statutory offence based on failure to comply with a recommendation (i) which can be made on the basis of uncorroborated evidence; and (ii) from which there is no right of appeal. We are concerned that the imposition of mandatory compliance with recommendations in this way has the real potential to turn FAIs into examples of the most adversarial litigation. Parties who face the possibility of mandatory recommendations are likely to insist, with justification, on fair notice by way of detailed 8 Section 17(2) of the draft Bill 9 in Section 18 of the draft Bill 10 under section 20 of the draft Bill 11 at section 22(2)

7 pleadings, a right to lodge defences or answers, a period to adjust these, the right to amend them and an extended time to prepare for hearings. The end result of this is likely to be that FAIs are made lengthier, more complex, and more expensive. This result appears directly contradictory to one of the key aims of this proposal and draft Bill: the aim to make the process of investigating deaths quicker and more transparent. We support this aim. We consider that the potential for FAIs to become areas of fiercely fought adversarial litigation is unwelcome. We anticipate that the proposals to make compliance with recommendations mandatory and the imposition of a statutory offence are likely have this effect and we are accordingly not in favour of them. We note, moreover, that the draft Bill envisages that a sheriff s recommendations may be directed to persons or bodies who were not parties to the inquiry. The combined effect of sections 18 and 20 in the draft Bill is that a person or body who was not present at the inquiry and was not in a position to challenge or counter any of the evidence or make any submissions thereon or challenge the making of a proposed recommendation may find themselves guilty of an offence under section 20(3). We consider this unacceptable and liable to give rise to injustice. Furthermore, it is incompatible with Article 6 of the European Convention of Human Rights. A procedure whereby a party s rights are determined without ever hearing that party s submissions would be incompatible with the general right in both civil and criminal cases to an oral hearing which derives from the guarantee in Article 6 of a public hearing. Further the combined effect of sections 18 and 20 in the draft Bill would be incompatible with the rights guaranteed in Article 6(3) to everyone charged with a criminal offence. 4. Do you agree that strict, and short, time limits require to be introduced into the system both in relation to the time frame within which the Lord Advocate must make a decision

8 about whether a judicial inquiry shall be held and thereafter the timeframe for holding certain procedural hearings and the hearing of evidence itself? Please indicate yes / no / undecided and explain the reasons for your response We agree that to be effective an FAI must be held within a short period after the accident. Recollections quickly dim and documentary evidence can be lost. Furthermore, indecision about whether or not an FAI will proceed may hamper investigation by those who potentially have a civil claim. We consider that the provisions of Section 9 of the draft Bill are reasonable, as is the timescale provided for therein. In accordance with the Faculty of Advocates Response to Question 13 in relation to the Consultation which preceded Lord Cullen s report we agree that provision should be made for preliminary hearings for the whole of Scotland. If provision for mandatory preliminary hearings is to be made, we agree that it is reasonable that a preliminary hearing should be held no later than 2 months after an application has been made to the sheriff for the holding of an inquiry. This is the time-scale provided for in section 12(2) of the draft Bill. 5. Do you think that the timeframes and the means of judicial management proposed within the draft Bill are sufficient and the best way to achieve a speedy and efficient means of driving the inquiry process forward? Please indicate yes / no / undecided and explain the reasons for your response We refer to Answer 4.

9 6. Do you agree that the Lord Advocate should produce clear written decisions when certain powers are exercised in relation to inquiries into deaths as proposed in the draft Bill? We agree that, if and when requested by the relatives of the deceased, written reasons for the Lord Advocate s decision not to apply for an FAI, should be provided to them. 7. In what circumstances do you think an inquiry should be carried out following an accident or incident leading to a work related death? We do not consider that work related deaths which are not covered by the provisions of section 1(1)(a) of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 ( the 1976 Act ) should fall into the category of cases in respect of which it is mandatory that an inquiry into the death shall take place. The amendments to the previous legislation applicable to public inquiries into deaths in Scotland effected by the 1976 Act followed broadly the recommendations of the Grant Committee (The Sheriff Court: Report by the Committee appointed by the Secretary of State: Edinburgh:H.M.S.O.; 1967 Cmnd.3248). However the Grant Committee had also recommended that there should no longer be a compulsory inquiry into every death resulting from an industrial accident and instead recommended that these inquiries should be at the Lord Advocate s discretion. In reaching the view that, on balance, it would be wrong to abolish compulsory inquiries into these deaths, the Government took account of arguments made by the Law Society of Scotland and the Scottish Trades Union Congress that if inquiries were not compulsory there was a risk that a material number of cases of fatal accidents at work would not be fully investigated and that in many cases the employers version of events, which might appear convincing at first sight, would be accepted without further inquiry. (Hansard: H.C. Vol.906, cols ). In the case of death due to industrial disease, the death itself will almost

10 inevitably occur outside the workplace and will almost always be accompanied by a diagnosis (whether made in life or post-mortem) which - to the extent that it implicates an industrial cause - will identify the agent most likely to have been the cause of the disease. There is not, therefore, the same scope as was perceived to exist in the case of industrial accidents at the time of the passing of the 1976 Act for employers to give a one-sided version of events as to the nature of the accident causing a death and how it came about. Furthermore, 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. Accordingly, the death will often occur long after more stringent statutory regulation relating to the offending agent has been put in place than existed at the time of the exposure which caused the disease leading to the death. In these circumstances, 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 1976 Act. The terms of Question 7 and of paragraph 28 of the Consultation paper suggest that Question 7 has been framed on the understanding that the word accident in the 1976 Act has a restricted meaning so that there is a distinction between the word accident in the Act and an incident as referred to in Question 7. If it is being suggested that there is such a distinction and /or it is being suggested that the word accident is too narrow to cover, eg exposure to a harmful substance where that is due to an incident or accident, we do not agree. There is no statutory definition of "accident" in the Act. "Accident" has been said to have no set statutory meaning, but rather to depend on the context (Chief Constable of West Midlands Police v Billingham [1979] 1 WLR 174). It therefore has a potentially wide definition encompassing events of an unfortunate, unexpected or unintended nature; the prescription of an incorrect drug has, for example, been held to be an accident for present

11 purposes (Cusker 2009 GWD ; see also Shiels, What is an accident?, 2012 SLT (News) 93). 8. Do you agree that an inquiry into a workplace death should be heard by either a specialist personal injury Sheriff or the specialist personal injury Sheriff Court with jurisdiction to hear cases throughout all of Scotland as currently being proposed in the Courts Reform (Scotland) Bill Consultation 2013? We do not consider that there is an automatic need for FAIs into a workplace death to be heard by either a specialist personal injuries Sheriff ( a PI Sheriff ) or within the specialist personal injuries Sheriff Court ( the PI Court ). Whilst some FAIs are complex some are relatively formal or straightforward in nature. Furthermore, the issues in personal injury actions are different from those in FAIs the FAI is inquisitorial, - it does not attribute fault or blame, it makes no findings in negligence, and there are no monetary damages to be assessed by the sheriff. Moreover, it would not serve the public interest to require all workplace deaths to be heard by a PI Sheriff or the PI Court. The likelihood is that the volume of cases, including both FAIs and personal injury actions, will be too great to allow the court (either through a PI Sheriff or at the PI Court) to deal with them expeditiously thereby creating a backlog of cases, due to pressure of court business, resulting in unwelcome delay in the commencement and conclusion of FAIs. We agree, however, with Lord Cullen s recommendations that where an FAI is likely to involve matters of some complexity, a sheriff, who has adequate experience, is assigned to hear it and that the assignment of sheriffs for complex FAIs should be a matter for the sheriff principal.

12 9. Do you agree that the family of the deceased ought to have a special role within the inquiry process guaranteed by the rules governing inquiries into deaths and do you think that the proposed Bill, annexed to this consultation, is sufficient for that purpose? We agree that it is important for the family of the deceased to have an opportunity to participate effectively in FAIs, should they wish to do so. However, we also consider that it is important in the public interest for each FAI to be conducted according to the judgement 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. We further note 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. 10. In particular, do you agree that the family of the deceased should be entitled to determine that an inquiry take place in the proposed specialist Sheriff Court unless the Lord Advocate is able to show special cause to the contrary; and should have the right to influence and shape the nature and extent of the inquiry into the death of their family member by the means proposed in the draft Bill? We do not agree with either proposal. We refer to our comments in relation to both questions 8 and 9.

13 11. Do you have any experience of the current FAI system either positive or negative which you think is relevant to this consultation? We feel unable to make any specific comment on this point as the Faculty does not collate formal feedback or similar data relating to the individual experiences of its members. 12. What, if any, are the wider implications of the proposed Bill? Can you see any unforeseen consequences? Do you estimate that the proposed legislation will have financial implications for you or your organisation? As set out in our responses above we think that certain aspects of the proposed bill have the potential to encourage FAIs to become adversarial in nature as opposed to inquisitorial. Other unintended and unwelcome consequences, about which we have expressed concerns arising from the terms of the proposed Bill, are the increase in the (i) length; (ii) complexity; and (iii) additional expense of FAIs, and (iv) potential for injustice arising from the provisions relating to the enforcing of recommendations.

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