Scotland has a different system to England & Wales for investigating fatal accidents and sudden deaths. South of the border, inquests are held before coroners. North of the border, fatal accident inquiries (FAI) are held before sheriffs at the instance of the Procurator Fiscal (PF). Throughout the UK, though, the same broad fundamental principles apply that the purpose of an inquest or FAI is not to determine criminal culpability or civil liability but rather to establish the circumstances of the death and to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. The position, throughout the UK, is also that a death from COVID-19 (C-19) is not reportable for the purposes of an inquest or FAI purely because it is a C-19 death. In Scotland, this was confirmed on 24 March 2020 when a joint letter was sent to medical practitioners by Dr Catherine Calderwood, the then Chief Medical Officer, the Register General and Keeper of the Records of Scotland, the Chief Executive of the Crown Office and PF Service and the Deputy Chief Constable of Police Scotland. With immediate effect, this joint letter excluded C-19 deaths and presumed C-19 deaths from the legislative scope of deaths from notifiable infectious diseases for which there is ordinarily a requirement on medical practitioners certifying deaths to report to the PF. However, the joint letter also makes clear that a report to the PF should be made where a C-19 death occurs and the death falls into another category which requires a report to the PF, for example deaths in prison and deaths “which may be related to a suggestion of neglect” or “where there is an allegation or possibility of fault on the part of another person, body or organisation.”
The exclusion of “C-19 only” deaths from those which should be reported by medical practitioners to the PF does not mean that there is no duty on Scottish medical practitioners to report the instance of C-19. On the contrary, medical practitioners in Scotland have, since 22 February 2020, been required to share patient information with health boards if they have reasonable grounds to suspect a person they are attending has C-19. The classification by the Scottish Government on 22 February 2020 of C-19 as a “notifiable disease” for these purposes came before C-19 was so-classified in England & Wales on 5 March 2020. There have also been further differences between Scottish guidance and guidance for England & Wales during the crisis to date. For example, on 29 April 2020, Scottish Government recommended wearing cloth face coverings in stores whilst, at that time, UK ministers were considering the scientific evidence for introducing similar advice. Guidance for the construction industry has also been issued in different terms north and south of the border. In Scotland, all sites not operating as part of “Critical National Infrastructure” were advised to close whereas the English guidance is looser, namely that “construction can continue if done in accordance with the social distancing guidelines, wherever possible.” Guidance is, though, not law but, in appropriate circumstances, guidance can sometimes influence law by, for example, illustrating what a duty to take “reasonable care” may mean in a particular situation. Whether the guidance will come under judicial scrutiny in future cases remains, of course, to be seen.
Meantime, on 24 April 2020, James Wolffe QC, Lord Advocate and, as such, Head of the Crown Office and PF Service, issued an update on the reporting and investigation of deaths in Scotland during the current pandemic. He emphasised that “other (i.e. non-C-19-only) sudden, unexpected and unexplained deaths must continue to be reported in the usual way” and underscored the continuing position that “the nature and extent of the investigation required in relation to each death reported to the PF will depend on its circumstances. In appropriate circumstances, as is always the case, it may be decided that a death, or deaths, should be the subject of a fatal accident inquiry or prosecution.” Aside from making that point that “I remain constitutionally responsible for the investigation of sudden, unexpected and unexplained deaths in Scotland throughout the coronavirus pandemic”, the Lord Advocate’s update does not deal with how, if at all, existing FAIs may proceed, no doubt because at this time the Scottish courts are only hearing essential urgent business. Certain steps have been taken by the Scottish Courts and Tribunals Service to hear certain civil appeal cases remotely by video conferencing but no witness evidence has yet been taken by this method. The challenges posed by trying to safely arrange witness evidence remotely whilst also ensuring that FAIs are held “in public” may mean that it is not realistically possible to resume FAI hearings requiring witness evidence in the immediate future.
Zoe McDonnell, Associate and Greg MacDougall, Partner and Solicitor Advocate
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