'We should be the same as England' - plea to close legal loophole which blocks investigations into Scots' deaths abroad

MSPs are being urged to define the phrase "ordinarily resident" in Scottish legislation as families say the two words are blocking Fatal Accident Inquiries (FAI) being held when Scots die in suspicious circumstances abroad.

They point to an automatic right in England and Wales for a coronor's inquest when a UK citizen's body is flown home - and say it should be the same in Scotland.

Davy Cornock of Montrose, whose son David is believed to have been murderd in Thailand in 2019, is petitioning the Scottish Parliament to have the law changed.

He says if he'd been aware that there would be no inquiry into his son's death by flying him home to Scotland, he would have flown him back to England.

Instead when David’s body was repatriated he was laid to rest, despite his death certificate stating the cause of death “could not be determined due to decomposition changes in body.”

He told LBC: "We had no idea our son would not be classed as a Scottish resident as a UK citiizen, as he had a UK passport.

"We brought him home and thought we qualified for an FAI as David's death met the suspicious death requirements but Police Scotland told us that despite their concerns they couldn't get involved because of this 'ordinarily resident' test.

"David lived in Thailand for nine years but had close association with the UK. The Lord Advocate, justice minster, everyone agrees, it's written in law, that if you bank here, vote here, pay tax here you can be classed as ordinarily resident and David did all that - he regularly visited family too - but he was still not classed as ordinarily resident.

"I don't think there should be an ordinarily resident test - we should be exactly the same as England.

"If you're a citizen of the UK and you're brought back you should have an inquest, or an inquiry. If I knew then what I know now I would have repatriated him to England where that happens automatically, and we would have had some closure."

Davy - and other families - want the Scottish Government to now either remove, or introduce a statutory definition of the term “ordinarily resident” in the Inquiries into Fatal Accidens and Sudden Deaths etc (Scotland) Act, which was introduced in Holyrood in 2016.

The law was designed so that Scotland's top legal officer, the Lord Advocate, could hold Fatal Accident Inquiries into the deaths of Scots abroad - something which wasn't set out in law previously.

When the law was passed it was expected the use of FAIs for deaths abroad would be "discretionary" as not all would occur in suspicious circumstances.

But the legislation did state the Lord Advocate must consider if "the death was sudden, suspicious, unexplained or gives rise to serious public concern or the circumstances of the death have not been sufficiently established in the course of other investigations".

However no FAIs have been held since the law was introduced despite around 1000 deaths of Scots abroad, and families affected say there is a “systematic failure” to protect Scottish residents overseas.

In England and Wales coroners have duties to investigate when bodies have been repatriated to their area from another country. They will investigate where a death was violent or unnatural or the cause of death is unknown or the deceased died in state detention.

Davy adds: “It’s a really complex situation but basically Scots don’t have protection overseas. In theory, our son was declared stateless. On the front of your passport it says you have the protection of the British government. But if you are Scottish you’ve got nobody’s protection at all.”

His petition is being backed by his MP, the SNP's Dave Doogan, and his MSP, Scottish Labour's Michael Marra.

Mr Marra told LBC: "The Scottish Parliament passed the legislation, it is clearly not working as intended, so it's up to us to change that."

Justice Secretary Angela Constance said: “I would like to extend my sympathies to Mr Cornock over the tragic loss of his son David in Thailand. Both the First Minister and I have met Mr Cornock to discuss his experience.

“Fatal Accident Inquiries are a matter for the Lord Advocate, who acts independently of government. The current definition of ‘ordinarily resident’ is viewed by the Crown Office and Procurator Fiscal Service as sufficiently flexible and workable for the investigation of deaths.

“While it is the role of the Foreign, Commonwealth and Development Office to provide consular support, the Scottish Government is committed to identifying where support to families in Scotland can be improved."