Fatal Accident Inquiries: follow up review

Introduction

The responsibility for the investigation of any death that requires further explanation rests with COPFS. This includes any sudden, suspicious, unexpected or unexplained death and any death which has occurred in circumstances which give rise to public concern. If the death is sudden and unexplained, this accentuates the distress and heightens an already stressful situation for bereaved relatives and involvement of the procurator fiscal and an unfamiliar justice system, at a time of significant personal crisis or distress, can be bewildering and concerning.

Bereaved relatives are entitled to expect a thorough, prompt and professional investigation and to be guided through the process with sensitivity and respect. Protracted investigation and unexplained delays are likely to undermine public confidence in COPFS and, potentially, in Fatal Accident Inquiries.

What is a Fatal Accident Inquiry (FAI)?

A Fatal Accident Inquiry is a public examination of the circumstances of a death conducted before a sheriff. The procurator fiscal is responsible for presenting the evidence. Other interested parties, including nearest relatives, employers or organisations such as the Scottish Prison Service (SPS) are also entitled to lead evidence.

The purpose of an inquiry is to establish the circumstances of the death, and to consider what steps (if any) might be taken to prevent other deaths in similar circumstances.^[1] The sheriff's role is to establish the facts surrounding the death, rather than to apportion blame or to find fault.^[2] The FAI is a forward looking vehicle – it is a fact-finding procedure rather than fault‑finding. It is not to establish civil or criminal liability.^[3]

Having heard the evidence, the sheriff will issue a determination that includes findings on where and when the death and any accident resulting in the death occurred and the cause of such death or accident. Where the sheriff has identified reasonable precautions which might have avoided the accident or death; defects in any system of work which led or contributed to the accident or death; any fact relevant to the death,^[4] s/he may make recommendations to prevent similar deaths happening in the future.^[5]

Witnesses cannot be compelled to answer any questions which may incriminate them and the sheriff's determination may not be founded upon in any other judicial proceedings.^[6] This is intended, in part, to encourage a full and open exploration of the circumstances of the death in an environment where witnesses are able to give frank evidence without concern that it will be used in any other proceedings. A process which is adversarial and combative is likely to inhibit frankness and candour which in turn will diminish the impact of the inquiry and its outcome.

Any participant in the inquiry to whom a recommendation is addressed must provide Scottish Courts and Tribunals Service (SCTS) with a response in writing detailing what they have done or propose to do in response to the recommendation, or the reasons for not taking action.^[7] SCTS publish this information on their website.^[8]

FAIs are not usually held until a decision has been taken on whether there should be criminal proceedings.

Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016^[9] (the 2016 Act) supplemented by theAct of Sederunt (Fatal Accident Inquiry Rules) 2017 (the 2017 Rules) provide the legislative framework for such Inquiries.^[10]

Type of FAIs

Mandatory Inquiries^[11]

There is a requirement to hold an FAI where a death occurs in Scotland^[12] as a result of a work-related accident^[13] or where the deceased was in legal custody^[14] or was a child required to be kept or detained in secure accommodation^[15] at the time of their death. Such inquiries are referred to as "Mandatory inquiries". The Lord Advocate can decide not to hold a mandatory FAI, if satisfied that the circumstances of the death have been sufficiently established during the course of other proceedings.^[16]

The FAI is a powerful vehicle to expose systematic failings and unsafe working practices and to ensure there are systems to safeguard and protect those in held in legal custody.

FAIs have been instrumental in driving up safety standards across a wide range of working environments and identifying precautions to avoid deaths occurring in similar circumstances.

Those held in legal custody are vulnerable. The holding of an FAI into deaths occurring in custody ensures that there is public scrutiny of the circumstances of the death and oversight of the way in which the state authorities have dealt with the deceased whilst in legal custody. This is critical for the maintenance of public confidence in the authorities.

Discretionary Inquiries

Where a death was sudden, suspicious or unexplained, or has occurred in circumstances which give rise to serious public concern and it is deemed in the public interest for an inquiry to be held into the circumstances of the death, the Lord Advocate can instruct an inquiry. Such inquiries are referred to as "Discretionary inquiries".^[17]

Aims/Objectives

Our thematic report on FAIs was published in August 2016. A primary aim of the report was to obtain factual data on the causes of delay, to identify recurring themes and make recommendations to improve the efficiency and effectiveness of deaths investigations and the FAI process. The report made 12 recommendations.^[18]

It is the practice of the Inspectorate to conduct follow-up inspections to promote improvement and assess the effectiveness of our recommendations and their outcomes. The follow-up review aims to assess and report on the progress that has been made against our recommendations.

Given continuing criticism of delays between the date of death and the commencement of FAIs, it is also appropriate to undertake a detailed examination of what progress has been made to reduce timescales for commencing FAIs and identify whether there are any recurring themes contributing to delay.

In light of the tragic deaths of two young people while they were in legal custody in HM Young Offenders Institution Polmont (HMYOI) in 2018, we were asked to consider, as part of this follow-up review, the merits of prioritising investigations following the death in custody of a young person and, where appropriate, to establish whether there is scope within the current system to prioritise this category of case.

In the thematic report we highlighted new provisions that were introduced by the 2016 Act, including:

• A duty for the Lord Advocate to prepare a Family Liaison Charter setting out how the procurator fiscal will liaise with the family of a person whose death may be or is subject to an inquiry; and
• Permitting a single FAI to be held into multiple deaths if they are they are as a result of the same accident or in the same or similar circumstances.

The follow-up report provides an opportunity to assess the use of and compliance with these provisions.

Methodology

Evidence was obtained from a range of sources, including:

• Follow-up interviews with key personnel at COPFS involved with the management of the Scottish Fatalities Investigation Unit (SFIU) and investigation of deaths;
• A review of relevant documentation and management information;
• Examination of a significant sample of 56 cases where an FAI had been concluded between 2016/17 and 2018/19, including all relevant information from the case files and COPFS IT systems. We examined a range of factors, including the type of FAI, the age of the case, the reporting agency, the use of experts and whether there was a criminal investigation. In each case we measured timelines between the date of the death to the start of an FAI;
• An analysis of outstanding cases requiring an FAI; and
• A review of eight cases involving the death of a young person – aged under 21 years – while in legal custody within the last five years.

We would like to thank all those that gave up their time to assist with this follow-up review and in particular the staff of the Scottish Fatalities Investigation Unit (SFIU) for their open and active participation.