Justice 2 Committee,

Meeting date: Wednesday, May 9, 2001

Official Report 173KB pdf

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Petition

Members have a copy of petition PE324 and a background note on it. The petitioner asks the Scottish Parliament to call for a fatal accident inquiry into the circumstances surrounding the death of her son, Dwayne Hood, and invites the Scottish Executive to consider instituting a right of appeal to the Lord Advocate when a fatal accident inquiry has been ruled out.

The petition has more than 5,000 signatures. The Public Petitions Committee discussed it and referred it to us. Members will see that a letter is attached from the Crown Office, which supplies information for which the Public Petitions Committee asked. The letter is signed by the Solicitor General for Scotland, Neil Davidson.

I draw members' attention to the fact that some doubts exist about our legislative competence over the issues that the petition raises, as the Scotland Act 1998 contains nothing that would allow the Parliament to remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths. If the committee proposed a right of appeal, it is unlikely that the Parliament could make substantial changes to the system.

I know that we cannot discuss the details of the death of Mrs Reid's son. I bear in mind what the convener said about legislative competence. If we want to do anything—I am not sure whether we do—the only option open to us is to write again to the Crown Office to ask its views on whether there would be any use in extending the list of mandatory fatal accident inquiries. Mr Davidson refers to that in the penultimate paragraph of his letter. He does not say that he would be averse to that, and such an extension might go some way towards addressing concerns. I do not think that that would make any difference to Mrs Reid, but it may be as much as we can do.

It is obvious that we cannot talk about the details of the incident to which the petition relates. People are often rightly upset and aggrieved that a fatal accident inquiry has not been held. I have met people in such circumstances.

The decision on holding an inquiry was discretionary, although some inquiries are mandatory. Given our recent problems with the Lord Advocate's department over some discretionary decisions, I would be interested in receiving the written views of the Scottish Law Commission and the Law Society of Scotland on the relevant legislation, which may be perfectly sound. Judicial review is available, but that concerns only administration. Would the bodies that I mentioned think that there was merit in our considering whether another stage should be added to the process, if the Crown Office refused to hold a fatal accident inquiry? Would a change in the list of mandatory inquiries or a right of appeal be suggested?

This is not the first time that such decisions have been questioned. Other bodies may think that the issue is not of interest or not worth pursuing. We could ask for the views of a relevant academic, such as a professor of criminal law, to find out whether we should examine any issues. The Fatal Accidents and Sudden Deaths (Inquiries) (Scotland) Act 1976 could be sound, but openness and accountability have moved on since 1976. Perhaps we should obtain some information to allow us to put a full stop to debate of the issues that the petition raises. I have no firm views. I just thought that that might be worth exploring.

Do you want only written evidence?

Yes. We could write to some bodies about the petition and about the discretion to decide whether to hold a fatal accident inquiry. We could ask whether those organisations have any views on revisiting the legislation or on whether a policy change should be made. That would be interesting. The petition raises a reasonable point. Perhaps the problem relates to communication. Perhaps the relatives of the deceased did not receive sufficient information. On the other hand, the petition may raise an issue that requires further investigation.

In cases such as this, which concern the results of medical decisions, we can expect a rise in the number of challenges. That is happening already, so it seems reasonable that we should investigate the way in which fatal accident inquiries relate to medical situations.

I wonder whether there is likely to be an increase in the number of challenges because people ask more questions nowadays. I do not know whether the fatal accident inquiry is the road that we need to go down or whether some other procedure could be introduced that would ensure that relatives such as the petitioner are given the information that they require. That procedure need not necessarily be judicial, but it could be open, as Christine Grahame said. However, we may have to make it a statutory requirement, to ensure that it happens.

That is an important point. At this stage, I am not keen to enter into further investigation of whether appeals should be upheld. It is the purpose of the Crown Office to ascertain whether there has been foul play in unexplained deaths in certain circumstances. Scott Barrie has suggested that we ask whether we should increase the list of mandatory investigations. Christine Grahame, Mary Mulligan and Margo MacDonald have said that people ask more questions than before, which raises issues of openness and accountability. We should ask other bodies to examine the way in which information could be provided.

We should not forget that either the Justice 1 Committee or the Justice 2 Committee will deal with the Freedom of Information Act 2000. The petitioner says that she has encountered difficulty obtaining information about the circumstances surrounding a death. There are things that can be done to allow her and other people in similar circumstances to understand a bit more about the circumstances of a person's death. However, it is not the role of a fatal accident inquiry to investigate what happens every time someone dies in hospital. We would set ourselves up for that if we went down the road of investigating appeals.

Can we agree on Christine Grahame's suggestion to write to the Law Society and the Law Commission, saying that we are investigating ways in which we can open up the system to ensure that people such as the petitioner can get the information that they require?

I suggest that we also write to the Medical Defence Union.

Apart from answers on the specifics, I would like a yes or no to the question, "Do you think that the legislation requires to be reviewed?" Let us nail it once and for all: do we require a different procedure? I would like to have the matter sealed. It would also be fairer to the petitioner if the committee's conclusions were based on professional views.

I do not have a problem with that. We will ask whether the law should be reviewed and we will pursue the issues that have been raised by other members. Are we agreed?

Members indicated agreement.

That brings us to the end of the agenda. I remind members that the next meeting of the committee will be on the morning of 15 May, when we will receive further evidence on the International Criminal Court (Scotland) Bill. We will also hear from the Deputy Minister for Justice. There will be a joint meeting with the Justice 1 Committee on 16 May, to discuss the budget process. I know that we have had a full agenda for the past couple of weeks, but we are getting to the end of it.

I might not be able to attend the meeting next Wednesday. Because there have been difficulties in the past, I wanted to let the committee know that in advance.

Thank you.

Meeting closed at 11:34.