Sheriff Principal Abercrombie made 34 recommendations in a new report, which describes the “current intolerable delays” of FAIs as the “collective failing” of disparate parts of the system that fail to operate coherently.

He did, however, single out the lord advocate’s role in the process.

“I do, however, consider that it is the responsibility of the lord advocate (and those that provide funding for her functions) to ensure that each investigation is driven at pace. 

“Where there is delay, or even resistance, to handing over evidence, that must be dealt with immediately. When a promised action hasn’t been done on time, that must be addressed immediately.”

Incredibly, delays have been caused because “someone has changed job, there has been an unexpected absence, or an email has simply been missed”.

He writes: “It is intolerable that a process, a primary function of which is the prevention of future deaths of those in state care, should take years to conclude.”

Among his recommendations are:

• Changes to the way that FAIs into deaths in prison and police custody are carried out should be assessed by the end of 2028, both in terms of what changes have been made and the impact of those changes. This assessment must be published.
• Legal aid should be made available to families immediately upon the death of a relative in custody.
• Scottish government should ensure that current information relating to the FAI process is brought together in one easily accessible place, and then developed into a comprehensive single source of information about FAIs.
• COPFS should assess the use of joint minutes of agreement, ensuring practice is wholly compliant with the rules of procedure and ensuring that, going forward, joint minutes do not contain evidence that should be tested in the FAI.
• Sheriffs should seek views from families in relation to the provision of a short pen-portrait of the victim whose death is being examined, thus recognising that a human life has been lost.
• The lord president should consider the frequency and content of training for sheriffs in relation to FAIs. Such training should emphasise the importance of Article 2 and aim to ensure that the experience of families is considered, with the inquisitorial nature of proceedings being promoted.
• Only sheriffs who have received specific training in FAIs should hear FAIs.
• The lord president and the Judicial Institute should be fully supported in the development of a ‘bench book’ to support the judiciary presiding over FAIs. Such a ‘bench book’ would encourage best practice, consistency and robust case management of the FAI to ensure that the FAI process delivers its intended purpose.
• Sheriffs hearing FAIs should be able and encouraged to issue interim determinations, should they deem that to be useful or appropriate. Court rules should facilitate that.
• Determinations should be issued rapidly, at the longest within a year of the death or deaths they relate to, given that a primary purpose of an FAI is to prevent further avoidable deaths.
• There should be an independent body established charged with collating, assessing, and tracking implementation of changes necessary as a result of death in custody FAI findings. This body should be resourced in such a way that it is able to critically assess the totality of outstanding FAI findings at any given time, across custody settings in Scotland.
• The body established to follow up FAI findings should report annually to Parliament and publish additional information or reports in the public interest
  as required.

Justice Secretary Angela Constance said: “I am very grateful to Sheriff Principal Abercrombie and the advisory group for this forthright review. Their report’s thorough and wide-ranging recommendations set out the evident need to improve the Fatal Accident Inquiry system.

“The message from families who gave evidence to the review is clear, they feel let down and their experience of the system has added to their grief. This needs to change and families who have lost loved ones in custody cannot wait for a lengthy process to conclude before they see improvement.

“Responsibility for acting on the recommendations sits with a range of justice partners, which is why I am setting up a multi-agency group to drive forward reforms.

“The group will consider the review’s recommendations and develop a shared action plan to improve the system of fatal accident inquiries for deaths in custody, with an emphasis on implementing reform as a priority.”