Dean of Faculty says mandatory categories for FAIs should be widened

James Wolffe QC

The Scottish government needs to think again about which categories of deaths should prompt a mandatory inquiry, the Dean of the Faculty of Advocates, James Wolffe QC, has suggested to MSPs.

Mr Wolffe said in evidence to the Scottish Parliament’s Justice Committee that the Faculty very much welcomed the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill which modernised the system of fatal accident inquiries (FAIs).

However, it was felt that the bill did not go far enough in relation to mandatory inquiries.

Mr Wolffe submitted that the death of a child in residential care, although not in secure accommodation, should be included in the mandatory categories.

And he agreed that another example could be someone under mental health detention who took their own life.

He said there were human rights obligations to be considered, and added: “It does seem to me that there is a need for the government to look very carefully at the categories of deaths…to see whether the mandatory inquiry provisions are drawn broadly enough.”

Questioned about a sheriff’s recommendations and whether those ought to be binding, he said the Faculty did not favour such a move.

The “stakes” at an inquiry would become all the higher, he suggested, with the risk that inquiries could become more difficult, protracted and adversarial.

“I suspect sheriffs would become much more cautious about the recommendations they made,” added Mr Wolffe.

Under the bill, those to whom recommendations are directed would be required to respond.

“It seems to me the balance has been struck appropriately in the bill…if a decision is made not to implement a recommendation, they would no doubt wish to explain why,” said Mr Wolffe.

The evidence session can be viewed here.

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