Fatal Accident Inquiries and Inquest
If you have a look at some of DV's previous threads, you will see details of the representations that were made to the Justice Committee. I don't know if DV is the person who actually made the representations, or one of his support team, but they did the job admirably.
Why now? There is a new Act in preparation and the time is right to ensure any 'loopholes' or mis-interpretations are closed.
Why now? There is a new Act in preparation and the time is right to ensure any 'loopholes' or mis-interpretations are closed.
Thanks Davef68. I have now read the relevant written submissions by a campaigner to the Justice Committee concerning the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill. The same campaigner also gave oral evidence to the Justice Committee on 5 May.
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I think any serviceman/women past or present, who read the pompous (and factually BS) reply to the "campaigners" email by some chiseling bureaucrat about our employment status in Scotland would be immediately angry and on DV's side.
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I think any serviceman/women past or present, who read the pompous (and factually BS) reply to the "campaigners" email by some chiseling bureaucrat about our employment status in Scotland would be immediately angry and on DV's side.
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/20150526_COPFS_to_CG.pdf
The "campaigner's" reply is worth reading, as it highlights serious flaws in the Crown Office's arguement. I understand that the Crown Office was asked over two months ago to idendify the cases on which the "case law" was based. To date nothing has been presented.
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/FA2b._James_Jones.pdf
The Crown Office was also asked to idendify the number of discretionary military FAI carried out since the 1976 Act came into force, the following is their reply. It also answers those posters who ask the question, "why do you [me] not ask the Crown Office for information", the simply answer is that they claim not to know.
http://www.scottish.parliament.uk/S4_JusticeCommittee/Inquiries/FA21a._COPFS.pdf
I believe that once the current bill become an act, the military will be granted the same rights as their civilian counterparts. Without the campaigner's input to the Justice Committee this would never have happened, even thought the Crown Office of Scotland and the MoD had been aware of the anomoly for decades.
DV
DV, thank you. The "lone campaigner" is to be congratulated, as it is clear that the issue of FAIs into the deaths of service personnel in Scotland had not been considered by Lord Cullen's inquiry, and would not have been addressed at all in the new legislation but for the campaigner's intervention.
I regret not picking this up myself during the consultation period, as I might have been able to assist in a small way, although the "campaigner" has clearly managed pretty well on his own! Certainly, no-one had raised it with any organisation I am connected with.
The Scottish Minister's letter of 4 June 2015 appears to concede that, as a result of the campaigner's representations, explicit provision will be included in the law for discretionary FAIs into the deaths of service personnel in Scotland.
The Minister also wrote that:
DV are you in a position to say how that is going?
I regret not picking this up myself during the consultation period, as I might have been able to assist in a small way, although the "campaigner" has clearly managed pretty well on his own! Certainly, no-one had raised it with any organisation I am connected with.
The Scottish Minister's letter of 4 June 2015 appears to concede that, as a result of the campaigner's representations, explicit provision will be included in the law for discretionary FAIs into the deaths of service personnel in Scotland.
The Minister also wrote that:
The latest position is that the Scottish Government is seeking the view of the Ministry of Defence on having mandatory FAIs into service employment deaths in Scotland. I will update the Committee on the response from the UK Government, when a response is received.
DV thank you very much. I appreciate that you have been all over this already and have posted many times on the subject, so apologies for the late questions. I'm clear that in practice inquests into fatal flying accidents seem more likely to be held in England and Wales compared to FAI's in Scotland. I can see that there is a strong argument for this to be in practical terms the same on both sides of the border.
The definition of "service deaths" in section 17(2) of the Coroners and Justice Act 2009 might be helpful as far as it goes (it's not perfect in relation to flying duties) but the section only relates to monitoring and training by the Chief Coroner, not the decision to hold an inquest.
Have your researches shown that, unlike in Scotland, inquests have invariably been held into recent fatal service flying accidents in England and Wales?
Welcome to take to PM if you prefer.
The definition of "service deaths" in section 17(2) of the Coroners and Justice Act 2009 might be helpful as far as it goes (it's not perfect in relation to flying duties) but the section only relates to monitoring and training by the Chief Coroner, not the decision to hold an inquest.
Have your researches shown that, unlike in Scotland, inquests have invariably been held into recent fatal service flying accidents in England and Wales?
Welcome to take to PM if you prefer.
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I'm clear that in practice inquests into fatal flying accidents seem more likely to be held in England and Wales compared to FAI's in Scotland. I can see that there is a strong argument for this to be in practical terms the same on both sides of the border.
In a supplementary submission on 4th June 2015 by the Minister for Community Safety and Legal Affairs, Paul Wheelhouse, he said, "Having reflected on the evidence at Stage 1 [Justice Committee Report], the Government believe that it is inconsistent to have discretionary FAIs into military deaths abroad (but only if the death is notified to the Lord Advocate) and coroners’ inquests into such deaths in England and Wales, but not when the death occurs in Scotland."
The MoD and the Crown Office of Scotland have been aware of this inconsistancy for decades, but chose to ingnore it.
DV
Thank you again, DV. I had read that quote from the Scottish Government Minister but am not sure that I fully follow it:
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".
The employment status of the deceased is immaterial to the exercise of that power under section 1(1)(b) of the 1976 Act.
Good luck and keep going.
"Having reflected on the evidence at Stage 1 [Justice Committee Report], the Government believe that it is inconsistent to have discretionary FAIs into military deaths abroad (but only if the death is notified to the Lord Advocate) and coroners’ inquests into such deaths in England and Wales, but not when the death occurs in Scotland."
The employment status of the deceased is immaterial to the exercise of that power under section 1(1)(b) of the 1976 Act.
Good luck and keep going.
They have the power to hold an FAI into any death in the workplace, or where there is a belief of suspicion regarding the circumstances of death, including service deaths.
I don't beleive, based on the Crown Office interpretation of employment, that discrecionary power extends to service deaths where there is no suspicion, where as a 'normal' workplace death would invoke an FAI.
I'm interested to see if COPFS manage to cite the cases they mention, there is sometimes a tendency to rely on Stair et al without double checking.
I don't beleive, based on the Crown Office interpretation of employment, that discrecionary power extends to service deaths where there is no suspicion, where as a 'normal' workplace death would invoke an FAI.
I'm interested to see if COPFS manage to cite the cases they mention, there is sometimes a tendency to rely on Stair et al without double checking.
That's basically it, Davef68. It's the difference between sections 1(a)(i) and 1(b) in the current legislation, i.e. the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, my bold:
1 Investigation of death and application for public inquiry.
(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 self-employed 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; or
(b)it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,
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.
(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 self-employed 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; or
(b)it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,
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.
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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
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I believe that the spirit/intent of the Fatal Accident and Sudden Deaths Inqiry Act 1976 is best summed up by the words of Lord Campbell of Croy in the House of Lords on 9th Dec 1975
"The noble Lord, Lord Kirkhill, was explaining to us a few minutes ago the changes suggested in this Bill. First, it is suggested that in future a fatal accident inquiry should be mandatory for an accident occurring during any employment and not restricted to industrial employment. I notice that the words "or occupation" are included in the Bill, so it seems that an accident in virtually any kind of employment will now fall within the scope of this Bill".
The Convener of the Jusice Committee said on 5th May;
It is not just "employment"; it is "employment or occupation". Therefore, even if there is an argument—which I do not necessarily agree with—that a person is not employed by the services because of the system under which people join the armed forces, it is still their "occupation".
Everyone sees it, except the Crown Office.
DV
"The noble Lord, Lord Kirkhill, was explaining to us a few minutes ago the changes suggested in this Bill. First, it is suggested that in future a fatal accident inquiry should be mandatory for an accident occurring during any employment and not restricted to industrial employment. I notice that the words "or occupation" are included in the Bill, so it seems that an accident in virtually any kind of employment will now fall within the scope of this Bill".
The Convener of the Jusice Committee said on 5th May;
It is not just "employment"; it is "employment or occupation". Therefore, even if there is an argument—which I do not necessarily agree with—that a person is not employed by the services because of the system under which people join the armed forces, it is still their "occupation".
Everyone sees it, except the Crown Office.
DV
Thank you DV for another two very informative replies.
Ref your post #54, the quote from Lord Campbell of Croy (a former Secretary of State for Scotland, and holder of the Military Cross) is very interesting, and I have now read his full speech, which is very critical of the then Labour-controlled Scottish Office's failure to consult adequately over the Bill.
I haven't checked what the state of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Bill was at the time Lord Campbell made those remarks, but the reference to "occupation" in the Act as passed only applies to a deceased who was either an employer or a self-employed person, and therefore unfortunately does not apply to service personnel.
Ref your post #54, the quote from Lord Campbell of Croy (a former Secretary of State for Scotland, and holder of the Military Cross) is very interesting, and I have now read his full speech, which is very critical of the then Labour-controlled Scottish Office's failure to consult adequately over the Bill.
I haven't checked what the state of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Bill was at the time Lord Campbell made those remarks, but the reference to "occupation" in the Act as passed only applies to a deceased who was either an employer or a self-employed person, and therefore unfortunately does not apply to service personnel.
Last edited by baffman; 4th Aug 2015 at 06:43.
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but the reference to "occupation" in the Act as passed only applies to a deceased who was either an employer or a self-employed person, and therefore unfortunately does not apply to service personnel.
Well that is a possible take on it and one that I had considered, however I believe that the intent was to cover all work related deaths of people in the course of their employment or occupation. Lord Cullen, in his 2009 review, recommends that "it should continue to be mandatory that an FAI should be held into the work-related deaths". Furthermore, the notes which accompany the new bill state the following;
"Section 2 sets out the circumstances in which an FAI is mandatory. Under subsection (3) an FAI is mandatory if the person died in Scotland as a result of an accident in Scotland, in the course of the person’s employment or occupation. This replicates the effect of section 1(1)(a)(i) of the 1976 Act."
The new bill confirms my believe in the intent behind the existing 1976 Act by stating that a mandatory FAI will be called "while the person was acting in the course of the person's employment or occupation"
The Crown Office are reluctant to use the phrase " work-related death"
DV
Thank you again, DV.
The Lord Cullen Inquiry does seem to have been a missed opportunity, not least by the Inquiry itself. The notice of the inquiry was very insistent that the investigation of the deaths of servicemen and women overseas was a subject of discussion between the UK and Scottish governments, and not a matter for the Inquiry.
It does seem very odd that the deaths of servicemen and women in Scotland were not specifically mentioned at all.
But I note the references to "occupation" in general.
I expect you are already aware of (indeed you may have mentioned it yourself) a case in which the MoD rather hypocritically tried to argue, because it suited them, that servicemen and women were "employees" after all:
The Lord Cullen Inquiry does seem to have been a missed opportunity, not least by the Inquiry itself. The notice of the inquiry was very insistent that the investigation of the deaths of servicemen and women overseas was a subject of discussion between the UK and Scottish governments, and not a matter for the Inquiry.
It does seem very odd that the deaths of servicemen and women in Scotland were not specifically mentioned at all.
But I note the references to "occupation" in general.
I expect you are already aware of (indeed you may have mentioned it yourself) a case in which the MoD rather hypocritically tried to argue, because it suited them, that servicemen and women were "employees" after all:
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I think any serviceman/women past or present, who read the pompous (and factually BS) reply to the "campaigners" email by some chiseling bureaucrat about our employment status in Scotland would be immediately angry and on DV's side.
DV
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Watched an excellent programme on BBC last night which covered the Quintinshill rail disaster of 1915, in which some 200+ Scottish soldiers were killed when trains collided. According to the programme evidence for the inquiry came from people in the pay of the rail company and government, none of it was subjected to independent cross examination. This could never happen today, the BBC report concludes.
Let's 'fast forward' 100 years and review another collision, this time between two Tornado aircraft in the air. All the evidence supplied to the Crown Office comes from people in the pay of MoD, none of which has been subjected to independent cross examination. Nothing has changed.
DV
Let's 'fast forward' 100 years and review another collision, this time between two Tornado aircraft in the air. All the evidence supplied to the Crown Office comes from people in the pay of MoD, none of which has been subjected to independent cross examination. Nothing has changed.
DV
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Double Standards
I believe that the latest Crown Office statement on the Clutha helicopter accident, and their decision to call an FAI because, “An FAI will allow a full public airing of all the evidence at which families and other interested parties will be represented. It is right that the evidence can be vigorously tested in a public setting and be the subject of judicial determination”, is a testament of the double standards applied to civil and military accidents in Scotland, as it is only appled to civilian cases. Surely, this justification should have applied to the Tornado accident, for example.
DV
DV