Crown Office: Inquiries into fatal accidents abroad face evidence hurdles

Fatal accident inquiries into the deaths of Scots overseas are likely to suffer serious delays as a result of difficulties obtaining evidence, senior prosecutors have warned.

The Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill, which MSPs are currently taking evidence on, will for the first time allow FAIs into sudden, suspicious or unexplained deaths of Scots abroad.

A decision on whether to go ahead with an FAI, which will only apply where the body is repatriated to Scotland, will sit with the Lord Advocate and his judgement as to whether the circumstances of the death are clear following a foreign investigation.

The proposal – bringing Scotland into line with England and Wales – has been welcomed by families who have lost loved ones abroad. Almost 3,000 people signed a petition lodged at Holyrood in 2009 calling on the Scottish Government to instigate the change.

However, the Crown Office and Procurator Fiscal Service (COPFS) has stressed that there will be “limitations” on what it will be able to do and establish in a written submission to the Scottish Parliament’s Justice Committee.

“Even in criminal proceedings it can take a significant period of time to secure evidence from abroad using Mutual Legal Assistance (MLA) treaties as the process relies heavily on the goodwill of the requested state to provide the request with the relevant degree of priority,” writes COPFS crown agent and chief executive, Catherine Dyer. 

“For instance the standard period to obtain evidence from the United States is six to eight months and in many cases it takes longer. However, MLA treaties could not be used to obtain evidence from abroad for a FAI as these treaties are restricted to criminal proceedings. 

“Accordingly, COPFS will not have the power to compel the attendance of witnesses or the production of crucial evidence from foreign countries for FAIs within the scope of mutual legal assistance. If it is possible to obtain any evidence at all it is likely to take far longer than it does in criminal proceedings. 

“As a result there may be little further that can be discovered by the holding of a FAI than was discovered by the local investigation, and this may only serve to prolong frustration and distress for the family, particularly where there is likely to be a considerable passage of time before a FAI can be held as a result of the lack of Crown investigative powers.”

Solicitor General Lesley Thomson is to deliver evidence on the Bill before the Justice Committee on May 26.

MSPs last week took evidence from Julie Love, chairperson of the group Death Abroad-You’re Not Alone, who began the 2009 petition following the death of her 23-year-old son Colin who drowned while on a cruise in Venezuela.

“The most important thing when someone dies abroad is that our Government can make specific recommendations,” she said. “I know that the recommendations will not always be carried out, but at least the process would be in place.”