Fatal Accident Inquiries

Civil legal aid under the ordinary statutory eligibility criteria is available for all Fatal Accident Inquiries.

However following a Scottish Ministers’ Determination of 7 April 2025 there is an alternative mechanism with special rules by which legal aid can be available for one or more applicants where there have been a death in custody.

Details are provided in the guidance below.

Ordinary civil legal aid remains available for those ineligible under the determination.

A Fatal Accident Inquiry should be progressed expeditiously and efficiently. We will prioritise applications for Fatal Accident Inquiries and help you with them if needed. To do this, we need you and your client’s assistance.

Tell your client about the availability of civil legal aid and begin the process as soon as possible so that the application is ready to be submitted after the First Notice is received.

At the preliminary hearing, the sheriff will expect to hear from you about the progress that has been made with regard to applying for civil legal aid and on occasion from us. Remind your client of the need to provide all necessary financial information

If more than one member of a family is applying for legal aid you need to explain why this is necessary. This applies to all FAI’s including deaths in custody where you know that requests for such representation will be made.

Statutory test: probable cause

We consider that probable cause can be established if your client falls within the category of persons entitled to be notified of a Fatal Accident Inquiry.

Statutory test: reasonableness

To allow us to assess whether the test of reasonableness is met you should tell us:

• why you think your client needs separate legal representation at the inquiry, in addition to the role of the Crown
• any potential areas of dispute with the Crown in relation to the approach taken to the inquiry or the evidence to be led
• any areas of concern in relation to any other party involved in the inquiry that might result in the need for representation
• any areas of inquiry your client wants to pursue which will not be addressed by the Crown or should be pursued in a different way
• why you consider these different areas of inquiry are appropriate and reasonable to be taken forward at the inquiry
• any other relevant factors.

In some cases, we may need to see copies of the correspondence you have had with the Crown or, through you, request that specific points are clarified by them.

We will not consider the test of reasonableness to be met where your client is seeking representation to identify and gather information that might support a reparation claim.

You should provide information focussed on issues such as whether your client requires representation to protect their legal position against self-incrimination or avoiding any further proceedings.

Following the announcement made on 28 March 2025 that the Scottish Government would in due course be developing legislation to amend eligibility for civil legal aid for the families involved in deaths in custody in relation to any fatal accident inquiry, a temporary measure has been put in place by Scottish Ministers with effect from 7 April 2025 by virtue of a determination under section 4(2)(c) of the Legal Aid (Scotland) Act 1987.

It is important to note that the ordinary arrangements for legal aid for Fatal Accident Inquiries still continue in force, and for some clients, will be the only route by which to apply. Please see our guidance above.

The determination creates a parallel and alternative form of cover equivalent to civil legal aid for a limited group of qualifying applicants.

There is no means or merit testing, and no contribution. There is also no requirement for notification to the opponent nor or any facility for representations to be made or considered.

What FAI proceedings does the determination apply to?

The determination applies only to FAI proceedings:

1. Which relate to a death in custody or other circumstances covered by section 2(4) of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (“the 2016 Act”); and
2. Which are ongoing as at 7 April 2025, or in relation to which the first notice under section 17 of the 2016 Act is issued on or after 7 April 2025.

The determination does not apply in any way to FAI proceedings which have concluded prior to 7 April 2025.

Who qualifies for assistance under the determination?

There are three elements to qualification for cover under the determination:

1. Relationship with the deceased

To qualify for cover under the determination, your client has to be a relative or person entitled to participate in the FAI by virtue of section 11(1)(a) to (c) of the 2016 Act.

Where the deceased is survived by a spouse, partner or cohabitee, then that person, and they alone, are a/the person who meets this part of the test.

Where there is no spouse, partner or cohabitee, then the nearest family member of the deceased is a person who meets this part of the test.

Multiple family members

Where only one family member has a right to assistance under the determination, then any other family member who seeks to participate separately in the inquiry may apply for civil legal aid in the ordinary way.

In limited circumstances a second or further family members may apply under the determination. See the following section on Who qualifies – the order of precedence for details, but in summary the position is this.

Where there is no spouse, partner or cohabitee but there is more than one immediately close family member, by which is meant any of parent, adult child or sibling of the deceased, then the first to apply will be registered if they qualify, but one or more subsequent members of that group may apply and be given cover where we consider that reasonable in the circumstances.

In assessing reasonableness, we will apply the same test it applies at the moment in relation to ordinary civil legal aid where there are multiple applications by different members of a family. This is set out above.

Where there are relatives who are more distant than the nearest family members, there is no assistance available under the determination. They may, however, apply for ordinary civil legal aid subject to the normal tests applicable in the circumstances.

2. Notice under section 17(1) of the 2016 Act

The second element to qualification under the determination is that your client has been served with notice of the inquiry in terms of section 17(1). We require sight of the notice as part of the application process – see How to apply under the determination? below.

3. Legal aid status

The third element to qualification under the determination is that there is no existing grant of civil legal aid, nor a pending application for civil legal aid. Accordingly, to be a qualifying person, the person eligible under section 11(1)(a) to (c) must either:

1. Not have applied for legal aid, or if they have applied, the application must be withdrawn before lodging a notification of application under the determination
2. If legal aid has been applied for and granted, the client must apply to SLAB for termination of the grant, which termination then needs to be in place before then lodging a notification of application under the determination.

Where legal aid has previously been applied for and refused, the client is eligible under the determination if otherwise qualifying.

Who qualifies – the order of precedence

The following paragraphs set out the order of precedence which applies to applications under the determination. This simply reflects section 11(1)(a) to (c) of the 2016 Act:

1. Is there a spouse or registered civil partner of the deceased who has received first notice of the inquiry under s 17(1) of the 2016 Act? If so, only this person qualifies for cover under the determination.
2. If there is no spouse or registered civil partner, is there a cohabitee (when the deceased was at liberty) who lived with the deceased as if married, and who has received first notice under s 17(1)? If so, only this person qualifies for cover under the determination.
3. If there is no person of either type 1 or 2 above, are there any close family members, by which is meant a parent, sibling or adult child, who has received notice under s 17(1)?
   If there is only one such person, they qualify for cover under the determination. If the applicant is one of a number of family members who have received the first notice, then if they are the first to apply, they are entitled to assistance under the determination. If any other type 3 persons apply, they are entitled to assistance only if they satisfy us that it is reasonable for them to obtain cover under the determination.
4. If none of the above apply and the applicant is a more distant family member, is the applicant the only such person to receive a first notice under s17(1)?
   If there is only one such person, they qualify for cover under the determination. If the applicant is one of a number of more distant family members who have received the first notice, it is the closest family member who is entitled to cover under the determination.

Only one grant will be allowed under the determination unless we are satisfied that it is reasonable for multiple grants to proceed in the circumstances described in paragraph 3 above.

If you are unsure whether your client qualifies under the determination please contact us with details of the case, and we will advise you how best to proceed.

In the first instance please contact the Civil paralegals on 0131 240 2009 and they will direct your call to one of our staff solicitors.

What happens if a grant is made, but a closer relative comes forward for a grant under the determination

If a more distant family member obtains cover under the determination on the basis that they indicated that they are the closest family member who has received notice and who has an interest in participating in the inquiry, but a closer relative has received intimation under s17(1) and subsequently seeks cover under the determination, the closer relative’s grant will prevail.

The more distant family member’s cover will end, although, subject to eligibility, they will be able to apply for civil legal aid, and any such application will be dealt with as promptly as the circumstances allow.

Please note, however that it is important that clients understand that the closest family member or members to the deceased has precedence.

A more distant family member may consider it better to apply for civil legal aid rather than cover under the determination which is then displaced by the application of a closer relative.

This is driven by the terms of section 11(1)(a) to (c) of the 2016 and the primacy of the proximity of the relationship with the deceased.

How to apply under the determination?

The applicant’s solicitor must be registered to provide Civil Legal Assistance.

For a client who qualifies under both the relationship to deceased, and legal aid status, and who is ready to apply, the following steps are required:

1. On legal aid online, complete a standard CIV/SOL form
2. The Category Code (FAI) should be used in that form
3. The statutory statement should be completed, confirming that the applicant is applying under the determination. The statutory statement should state the client’s relationship to the deceased, and explain why they believe they are the most appropriate family member to apply under the determination with reference to the ranking explained at categories 1 to 4 above.
   The usual procedural application requirements for ordinary civil legal aid applications do not apply. No supporting statements are needed and no opponents should be listed. The s17(1) notice must be uploaded to the Civ Sol form.
4. Where legal aid is already in place for an ongoing Fatal Accident Inquiry, but the client seeks to apply under the determination, they must first withdraw their existing application.

How to tell us about an existing application or grant

If there is no final decision on your client’s legal aid application, you should send an online message to advise that you wish to abandon the application so that your client can proceed under the determination.

Where there is a current live grant of legal aid, you should notify us by online message that you want to terminate the grant so that you may apply under the determination.

In the special circumstances of the determination, we will immediately process the termination request, and legal aid cover will end.

Steps needed where termination of an earlier grant is requested

You (and as accords, counsel) should at the point in time where termination is requested know whether there has been or is to be a claim on the Fund in respect of the period for which civil legal aid was in place.

1. If neither the solicitor nor any counsel instructed during the period for which legal aid was in place has made any interim claim, or seeks to lodge any claim for payment, then that should be intimated to us. The solicitor should submit written confirmation that there will be no claims to us by way of online message together with the usual synopsis confirming that you do not intend to submit an account. Upon receipt of this confirmation from the solicitor, we will cancel any contribution liability and refund any balance held to the client.
2. However, if there has been an interim claim, or claims are to be made under the certificated just terminated or to be terminated for any work up to the date of termination, then we will continue to require payment of any contribution pending the lodging of claims by the solicitor and or counsel. Bear in mind that the only work that may be paid for under the determination is work done from the date the application for assistance under the determination is registered by us.

How does the determination affect existing grants of civil legal aid which pre-date the determination?

Concluded proceedings

There is no effect in relation to legal aid for concluded proceedings. The terms and conditions of that grant of legal aid will continue to apply.

So, for example, a client who is still paying instalments for a contribution to the cost of the case, will continue to pay until such times as either the assessed contribution is paid, or the cost of the case in a lesser amount is ascertained by the submission of the final account of the solicitor, at which point any refund of contribution could be identified and paid.

Current or new proceedings

Where civil legal aid has been granted in relation to qualifying FAI proceedings which are ongoing, then the client, if potentially a qualifying person, should be advised as to whether it would be advantageous to change from ordinary civil legal aid to cover under the determination. It will not necessarily be advantageous.

We do not anticipate that a client who readily qualifies on means, without contribution, and who is unlikely to have a change in their resources, will derive any advantage by switching from existing civil legal aid cover to cover under the determination.

What if eligibility for determination changes

Qualification for the determination is based on continuing qualification under section 11(1)(a) to (c).

If your client is granted assistance under the determination on the basis of a claim of qualification as nearest family member, and that qualification is then found to be invalid by virtue of an application being received from a person who it is established is a nearer family member to the deceased, then your client will no longer qualify under the determination.

If cover under the determination ceases, then your client may still apply for ordinary civil legal aid subject to the usual eligibility rules.

What if your client’s application under the determination is refused?

If your client applies and is found to be ineligible and application refused, an application for civil legal aid may still be made. Civil legal aid will not be granted where there is cover available under the determination, as, inter alia, your client has other rights and facilities.

What is the effect of the determination?

The determination enables us to pay fees and outlays to solicitors and counsel in exactly the same manner as would apply had legal aid been granted.

In effect it operates as if a grant of civil legal aid, with an effective date from the date we register the notification of the application.

If civil legal aid was in place in relation to the proceedings, but in turn terminated prior to the application under the determination, then any work during the effective period of civil legal aid may only be claimed under the civil legal aid cover.

Work done prior to the date of notification of application under the determination is not covered by a grant under the determination.

If legal aid was not in place prior to the grant under the determination, but work was carried out on behalf of the client under the special urgency provisions you must tell us if you intend to submit an account for the work you have carried out.

If you do we will need to assess whether your client will be liable to pay for the special urgency work. This will follow the same process as we currently do where only special urgency work is done.

We would ask you to ensure that the financial information of your client is updated as normal.

As indicated above, cover under the determination requires your client to have qualifying person status for the duration.

If there is a change to qualifying status, perhaps most notably by it being established that your client is not the closest/nearest family member who seeks to participate (and is therefore not a person to whom section 11(1)(c) applies) then cover under the determination will be terminated.

Beyond that the effect of the determination is effectively to operate akin to civil legal aid. The case cost limits apply, and applications for increases should be applied for in the usual way.

The normal rules and processes for sanction for counsel and experts, etc., also apply.

If the determination does not apply

A person invited to participate but not covered by the determination can still apply for civil legal aid in the usual way.

This also applies where they have had cover under the determination that has stopped.

Contact us

If you are unsure whether your client qualifies under the determination and you want to speak to us, please email us on merits@slab.org.uk, and we will arrange for someone to call you.

Statutory test: probable cause

Probable cause is established if your client falls within the category of ‘persons entitled to be represented’, at the Fatal Accident Inquiry, as a relative of the deceased or as a potential defender.

Statutory test: reasonableness

If your client is the relative of a person who died in prison or police custody we will look favourably on the application (subject to there not being more than one request from a family member).  It is appropriate for relatives to have their own independent representation at the inquiry to determine the facts.