Procedure for applying for legal aid for Fatal Accident Inquiries for a death in custody

A temporary measure providing access to free representation for the families involved in deaths in custody in relation to any Fatal Accident Inquiry (FAI) 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 1986.

This follows 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 in such cases.

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

Where the determination applies, there is no means test, and no contribution by the applicant towards the cost of the case.

There is also no requirement for notification to the opponent nor any facility for representations to be made or considered.

What FAI proceedings does the determination apply to?

The determination applies 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; 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; and
3. Where your client is a person entitled to participate in the FAI by virtue of section 11(1)(a) to (c) of the 2016 Act, and has been so notified under section 17; and
4. Where section 11(1)(c) applies to two or more notified persons with different interests, it is reasonable for assistance to be provided to both/all; and
5. Where your client is a person who is neither in receipt of, nor in course of applying for, ordinary civil legal aid.

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

Guidance and applications

We will shortly be publishing guidance for applications under the determination, including where more than one person potentially qualifies for assistance, and the relationship with, and effect on, ordinary civil legal aid, and changes to legal aid status.

In the meantime, if you intend to apply under the determination for a case to which it applies, in the first instance please contact:

Wendy Dalgleish, Head of Civil and Children’s Legal Assistance, dalgleishwe@slab.org.uk

Kirsteen Watson, Assistant Manager, Civil and Children’s Legal Assistance, watsonki@slab.org.uk

Norman Mackay, Senior Solicitor, Civil Merits Team, mackayno@slab.org.uk