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Mrs Ivy Niven for Judicial Review of a Decision of the Lord Advocate dated 8th May 2008 [2009] CSOH 110


In this petition for judicial review the petitioner sought to challenge the decision of the Lord Advocate, dated 8 May 2008, refusing a request that a fatal accident inquiry be held into the circumstances surrounding the death of the petitioner's daughter. On 19 December 1995 Richard Karling was found guilty of the murder of the petitioner's daughter on 27 June 1995. He subsequently lodged an appeal against his conviction and at the appeal hearing further evidence was led. A key aspect of the Crown case against the appellant was the presence of temazepam in the deceased's system which was subsequently shown not to be present. During that appeal hearing at the High Court in Edinburgh in June 2000, the Crown withdrew its opposition and Mr Karling's conviction was subsequently overturned and he was consequently released from custody. Here the petitioner sought declarator that she was entitled to an independent, effective and reasonably prompt public inquiry into the death of her daughter at which her next of kin could be legally represented and be provided with the relevant material and be able to cross-examine the principal witnesses. It was submitted that the failure on the part of the respondent to provide such an inquiry was incompatible with article 2 of the European Convention on Human Rights, and ultra vires of section 57(2) of the Scotland Act 1998. The petitioner also sought declarator that the decision of 8 May 2008 to refuse to order a fatal accident inquiry under section 1(1)(b) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 and a public inquiry in terms of section 1 of the Inquiries Act 2005 was unreasonable and irrational. Further, the petitioner sought declarator that the Lord Advocate was obliged to order a fatal accident inquiry under either the 1976 or the 2005 Act within such period as the court may determine. Here the court considered the investigations which have occurred into the circumstances of Ms Niven's death to date and whether they can properly be described as effective and what further investigations may be appropriate having regard to what, if any, new information concerning the circumstances of the death have been obtained by any party. The central issue for the court here was whether article 2 obliged the respondent to order a further inquiry into Ms Niven's death.