Fatal Accident Inquiries and Inquest

[Distant Voice]

That rather makes it sound as if the power to hold a discretionary FAI into a service death in Scotland does not exist at all, whereas as you know the power does already exist where the Crown Office considers it "expedient in the public interest", which is the essence of a "discretionary inquest".

This whole issue became clouded by the Crown Office’s letter to the Justice Committee, dated 21st May, after the ‘campaigner’ had presented his evidence. I quote;

“The committee may also wish to note in this regard that section 1A of the 1976 Act (added by the Coroners and Justice Act 2009, section 50(2)), which gives powers of the court in Scotland to have a Fatal Accident Inquiry into the death of service personnel abroad, provides that such an inquiry can take place where the Lord Advocate decides that is appropriate in the public interest to hold one. That is to say it makes such an inquiry a discretionary rather than a mandatory one.

The terms of section 1A support the view that had the United Kingdom Parliament considered that a Fatal Accident Inquiry into the death of military personnel be mandatory, they would not have made the Lord Advocate’s power in this regard a discretionary one”.

In an attempt to justify their interpretation of the 1976 Act, they mix discretionary FAIs, as stated in para 1 (1) (b) with Deaths Abroad referrals from the UK Chief Coroner or the Secretary of State who think “that it may be appropriate for the circumstances of the death to be investigated under the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976.” The spirit in which this was drawn up, according to the Minister of Community Safety and Legal Affairs, was to afford Scottish families of the deceased the opportunity to have an Inquest in England/Wales, or an FAI in Scotland. The Lord Advocate is given the power to accept the referral or not, and if not then the inquiry will take the form of a coroner’s inquest (Coroners and Justice Act 2009,section 13). This is different from a discretionary FAI outlined in para 1 (1)(b). It's either a guaranteed inquest in England/Wales, or a guaranteed FAI in Scotland. I believe the Crown Office’s statement confused not only the Minister but also the Convenor of the Committee.

DV