Since 1985, Scotland has had a system of Fatal Accident Inquiries and was most recently updated by the introduction of the Inquiries into Fatal Accidents
When does an inquiry take place?
An inquiry is mandatory subject to certain exceptions where the death occurs at work or the deceased was in lawful custody.
Discretionary inquiries
If the Lord Advocate (the senior law officer in Scotland) considers that the death was sudden, suspicious or unexplained or occurred in circumstances giving rise to serious public concern and it is in the public interests for an inquiry to be held then he can apply to the court for an inquiry.
Where does the inquiry take place?
It usually takes place in the Sheriff Court for the area where the accident or sudden death occurred.
Who has the right to participate in and be represented at the inquiry?
In the first instance the family of the deceased but any other interested party can apply to participate in the Inquiry.
Cost of representation at an inquiry
This can be expensive because inquiries can last for weeks or even months.
Legal Aid
In theory legal aid has been available to cover the cost of legal representation at an Inquiry for a number of years. In practice, though, legal aid is almost always refused. The Legal Aid Board takes the view that the Procurator Fiscal who usually conducts the Inquiry can raise all the relevant questions that the Inquiry needs to answer.
Role of the Procurator Fiscal
It is important to note that he is there to represent the public interest and not specifically the family of the deceased. Procurators Fiscal are very busy. They have limited resources. They may not consider that all of the questions the family of the deceased want answered are necessarily part of the public interest. So for all these reasons the Procurator Fiscal may not deal with a number of issues that the family of the deceased would like to be dealt with.
Change in the law
The Scottish Executive has recently announced that they will bring in a bill which will make legal aid available for the cost of legal representation at an inquiry. So if the bill passes into law then the family of the deceased will be entitled to legal aid regardless of the involvement of the Procurator Fiscal. Provided therefore the family qualify financially they will get legal aid.
When is the law likely to change?
Sometime during 2020.
Can you challenge a decision not to hold an inquiry?
In certain circumstances, yes. There is a process known as Judicial Review whereby you can challenge this.
Can you recover your legal expenses at an inquiry?
Normally, no. In exceptional cases if the inquiry is held to be unreasonable or vexatious the court can make an order for expenses but this is very rare and unusual.
If you have been affected by the death of a relative, and think you may have a claim for compensation, you can contact us to obtain advice from our specialist solicitors, and we will be happy to discuss your potential claim.
