At present if the Lord Advocate decides not to hold a Fatal Accident Inquiry (FAI), families can only challenge that decision by a Judicial Review. For most families this course of action is beyond their financial means.
However, an amendment to section 8 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 could give families a statutory right to request a FAI.
I was very much involved in the formulation of the new FAI 2016 Act, particularly concerning inquiries into Military deaths in Scotland. However, it was clear that once it was decided that a FAI would not be held, even in the public interest, families could only challenge the decision by means of a very expensive Judicial Review/Appeal system.
In a written submission to the Justice Committee, the Law Society of Scotland stated that if only a small number of families are dissatisfied with the decision of the Lord Advocate not to hold a FAI, then the creation of a statutory right to request an FAI may result in only a small number of additional hearings per annum throughout Scotland. Such hearings would provide closure to those families with unanswered questions, should have a minimal economic impact, but reinforce public confidence in Scotland's system of investigation. The society added that, ultimately, it would be a matter for the Sheriff at a Preliminary Hearing to decide upon the information placed before him or her by the family of the deceased and by Crown Office as to whether or not to hold an eventual inquiry.